Preamble

The House met at Eleven o'clock

PRAYERS

[Mr. SPEAKER in the Chair]

BILL PRESENTED

OVERSEAS SERVICE

Bill to authorise the Secretary of State to appoint officers available for civilian employment in public services overseas; to make provision as to superannuation in respect of officers so appointed, and to make further provision with respect to the overseas service of police officers; and for purposes connected with the matter aforesaid, presented by Mr. Lennox-Boyd; supported by Mr. J. Enoch Powell, Mr. Alport, and Mr. Profumo; read the First time; to be read a Second time upon Monday next and to be printed. [Bill 44.]

Orders of the Day — VARIATION OF TRUSTS BILL

Order for Second Reading read.

11.6 a.m.

Mr. F. P. Crowder: I beg to move, That the Bill be now read a Second time.
This is a dull Bill. It might be described as a tidying-up Measure. I feel in a rather unusual position, as a Member of the Bar, in seeking to overrule a decision of the House of Lords in the case of Chapman v. Chapman, which was decided three years ago, in 1954. As a practising member of the Bar, I am in an equally difficult position in trying to find my way through the labyrinthine realms of the Chancery Division. However, it may be of some comfort to the House to know that, normally, this is not my particular field of business and what I have to say will in all probability be in English and, I hope, understandable.
The reason for the Bill is that, before the case of Chapman v. Chapman, it was thought that people who were beneficiaries—I might even describe them expressly as "victims"—of a trust could go to a court and ask the court to vary the terms of the trust in the interest of all the beneficiaries. It happened that certain trusts were worded in such a way that the beneficiaries were often, as needs must be, under age or unborn. It was thought that, provided the courts took the view that the variation proposed was in the interests of the children, those who were not sui juris and under age and those who were unborn, that could be done. It was done, until the House of Lords reached a definite decision in the case which I have mentioned.
The result of that now is that the court, which is generally looked upon as the friend and guardian of children in such matters, becomes, in a sense, the enemy of the children. We have a situation at the moment which is both unfair and inequitable. Take a case where a large sum of money may well be involved; provided the situation is such that all the beneficiaries are sui juris, grown up, as it were, they can go to the court today and vary the trust in accordance with the conditions which


prevail at the moment. If it happens that there are children connected thereby, no matter how satisfied the courts may be that the variation is both necessary and wholly in their interests, it has no power whatsoever to intervene.
We are put in the position that the children are being throttled by the straps which bind them to the infant's chair. It is hardly necessary for me to remind the House that, with penal taxation and penal death duties, conditions are very different today from what they were when many of these trusts were being written out with quill pens in the dusty offices of Victorian solicitors about forty or sixty years ago.
Here I might pause for a moment and remember that the person who is the maker of a trust has, of course, a perfect right to be considered. Those who made a trust towards the end of the last century could not have had any idea of the enormous rate of death duties which prevails today and the very heavy incidence of Surtax which is imposed upon anybody enjoying a large income. If they had been able to foresee such conditions, of course, those trusts and deeds would have been very differently drafted. Anyone making a trust today, naturally—knowing the situation, seeing the possibility only of inflation in the future, dependent on which Government is in office, perhaps—can include such clauses as will give the trustees room to move on behalf of the beneficiaries.
Lest anyone should feel that in interfering with a trust one is interfering with a will, I should like to put it forward this way. It may be said with certainty that anybody who makes a trust for his dependants or children does so wholeheartedly for their benefits. They would be the first people in the world, if they were able and alive, to come forward and say, "That, of course, is the very last thing I intended should happen in connection with this particular sum of money."
I might remind the House that the sort of things which require altering today are investment clauses. Many old-fashioned trusts contain very restricted investment clauses, dealing perhaps only in gilt-edged market and Government securities, whereas today, if the best possible advice is taken, it might well be advisable—not only from

the point of view of the capital appreciation and stability on that side of the trust, but also from the point of view of income—that an investment of a large sum or even of a small sum should be rather more widely and shrewdly spread. But, as I say, where there are unborn children and infants the trust must remain rigid and the court has no power whatsoever to intervene.
There are other matters in connection with capital. Many trusts drafted years ago have no clause in them which would allow a young married couple to buy a house or which would, in extreme circumstances, allow the trust to advance small capital sums for education, illness or emergencies of that sort. Those are the sort of conditions which the maker or settlor of the trust, if he could have thought or known of them, would possibly have liked to have provided, but one knows very well the handicaps which any layman making a trust has to face.
He goes into a solicitor's office—as we know, some solicitors are better than others—and says to the solicitor, "Here is a lump sum. I want my children to have the income for life. Will you draw up a trust as you think fit?" The trust is then drawn and he reads it. It is in the sort of language he finds difficult to understand, and which I, as a common lawyer, also find difficult, but he signs it.
That is the end of the matter until, thirty or forty years after, someone says that it is fantastic that money should be invested in this way, or, when money is required for a purpose for the benefit of everyone concerned, the dusty deed is produced. Then it is discovered that the courts have no power to intervene and the terms of the trust were not drawn sufficiently widely.
There is one other matter which is worthy of reference. A court has still a power of intervention on this basis. Anybody who is the victim or beneficiary of a trust which is badly drawn is in a very much more fortunate situation, on occasion, than a person dealing with a trust which is properly drawn. By that I mean that if there are two constructions which the court can place upon the terms of the trust concerned it is still open to the court to choose the best construction open to them, whether infants are concerned or not. That, of course,


deals only with a very limited range of persons.
Other people who are fortunate so far as trusts are concerned are lunatics and those whose parents are divorced, because there again the court has certain powers. In the case of a lunatic the court of protection can intervene and vary the terms of the trust. If a husband and wife are divorced the Divorce Court has power, even today after the case of Chapman v. Chapman, to vary a marriage settlement, to avoid tax, or death duties. The child of a happy marriage, through no fault of his own, is the one who is severely prejudiced. To vary a trust, why should one have to be a lunatic or a child of divorced parents?
There is another anomaly. In the case of Chapman v. Chapman the Lords were not concerned with Section 64 of the Settled Land Act, 1925. I need not trouble the House with the details of that at this stage, but why should an infant whose interest is in land be better off than an infant whose interests are in goods, personalty or chattels? I should perhaps add that Chapman v. Chapman did decide that the court had a jurisdiction where there is a compromise of rights which are genuinely in dispute or, as I have said, a trust concerning land.
To sum up, the position where children or unborn children are concerned is, briefly, this. The court has no power, with the best will in the world and however it may wish to do so, to intervene. However glaring a necessity there may be, it has no power except in cases which concern the Settled Land Act, 1925, in cases where there is a genuine dispute as was decided in Chapman v. Chapman, in cases where there are lunatics, and in cases where there are divorced persons.
Clause 1 of this Bill enables the court, under these new provisions, to assent to any variation or revocation of trusts or to any alteration of the administrative power of the trustees which the court considers would be for the benefit of any beneficiary, who is incapable of assenting
by reason of infancy or any other incapacity ….
any person who may be entitled to an interest if he fulfils a specified require-

ment by a future date, but not a person in whose case the requirement would be fulfilled if the determining event had happened at the date of the application to the court, and, thirdly, any unborn beneficiary.
I wonder whether I might give the House an example. This is only a theoretical case. Suppose, for instance, the case is of property settled by will on a testator's daughter for life with the remainder for her husband for life, if he survives her, with the remainder to stay with her children and remoter issue in such shares as she may by will appoint, with the ultimate remainder, in default of appointment, to the persons who would have been her next of kin if she had died unmarried. At the time of the application to the court the testator and his wife are dead and his daughter is still unmarried and her brother grown up, namely, 21 years of age.
The persons interested in the trust are, accordingly, the daughter, her future husband if any, her issue if any, her brother if he survives her and any remoter relative who may survive her if her brother does not. I apologise for wearying the House with such a complicated and tangled example, but this is just the sort of situation which faces the courts every day and it is the sort of situation where they should intervene for the benefit of all concerned; but, owing to the House of Lords decision, they have not the power to intervene.
Under Clause 1 (1, b) the court will be able to assent to a variation on behalf of the girl's possible future husband and issue and on behalf of all persons who would have been regarded as her next-of-kin on her death, on the assumption that she dies unmarried, except, of course, her brother, who, being of age, must assent on his own behalf.
Before I come to what I know will be of great interest to the House—the question of tax avoidance—I must deal with the principles which necessarily concern the Bill, and I should perhaps draw the attention of the House to Clause 1 (2), which deals with the case of property held on what are known as protective trusts. Under an arrangement of that kind the principal beneficiary is entitled to the property provided that he has not alienated or otherwise dealt with his


interests in such a way as to cause a forfeiture of it. In other words, a protective trust is a provision against the spendthrift. In that event the trustees are directed to hold the property on trust for the maintenance or support of the principal beneficiary and of a number of other persons specified in the trust instrument, who commonly include many comprehensive classes whom the creator of the trust has no practical intention of benefiting. The provision is made by subsection (2), and subsection (3) defines "protective trusts" as meaning trusts specified in Section 33 of the Trustee Act, 1925, or any trusts to like effect.
The House has the Bill before it, and I have no doubt that those who have far greater learning and knowledge in these matters than I can ever hope to have will speak upon it this morning in greater detail, but I do not think that I need trouble the House any further with the Clauses and details of the Bill. Looked at generally by a layman, this is a short and simple Bill and amounts to nothing more or less than a tidying-up Bill. I can say, as the leading article of The Times said this morning, that it will be accepted by the whole of the legal profession, I imagine without opposition.
Indeed, if one wanted further commendation one has the Report which hon. Members have seen of the Law Reform Committee. That Report deals almost entirely with what is contained in the Bill and the case of Chapman v. Chapman. That Committee was presided over by no less a person than Lord Justice Jenkins, assisted by many other learned people, including Lord Justice Parker and Lord Justice Pearce. That Bill agrees with and recommends almost everything which is contained in the Bill. There are some slight deviations and variations of a very minor nature.
These Reports which one receives are all very well, but the House of Commons is far too robust a place to allow this country to have its laws made and to be governed by judicial committees, however eminent may be the people who preside over them. However right they may be in their conclusions, other considerations apply, not only from a national point of view but also from a political point and moral point of view. I should like now to deal with some of those considerations.
It is only right and fair that in putting forward the Bill I should remind the House of what was said by Lord Morton of Henryton during the case of Chapman v. Chapman. What is said is directly in opposition to what I propose here. He said:
If the court had power to approve and did approve schemes such as the present scheme
—he was dealing with the case of Chapman v. Chapman—
the way would be open for a most undignified game of chess between the Chancery Division and the Legislature. The alteration of one settlement for the purpose of avoiding taxation already imposed might well be followed by scores of successful applications for a similar purpose by beneficiaries under other settlements. The Legislature might then counter this move by imposing fresh taxation upon the settlements as thus altered. The beneficiaries would then troupe back to the Chancery Division and say, 'Please alter the trusts again. You have the power, the adults desire it and it is for the benefit of the infants to avoid this fresh taxation. The Legislature may not move again.' So the game might go on …
I do not think that that is likely to happen. I think that the learned Law Lord, on that occasion, was placing too great a stress on something which might happen occasionally here and there and too great an exaggeration on how, with common sense and fairness, these matters are likely to work out. After all, Lord Morton of Henryton should have remembered that already there are vast numbers of trusts which can be altered and are being altered every day. In a sense, the game of chess, as he so eloquently described it, has been going on for many years now. It does not seem to have troubled this House, it does not seem to have troubled the Inland Revenue, and I am quite certain that it has not unduly overworked the Chancery Division.
In dealing with the vexed question of whether it is right that this House should pass any form of legislation which will make it possible and easier for certain groups of people to realise capital sums and perhaps to arrange their affairs in such a way that the incidence of death duty will be smaller, there are many aspects to bear in mind. This is a question which I know that the House will want to consider very carefully.
It is, of course, only right that when considering this question, and this Bill together with it, we should remember that in fairness we should not look at the question too broadly. Whether we like it or not, the situation at the moment is that the great proportion of people in this country who pay their taxes have it open to them to arrange their affairs in a businesslike and sensible way on the basis that they do not pay more in taxation than they have to pay. Of course, any sensible person adjusts his affairs accordingly. Why should that enjoyment and facility not be afforded to one particular group of people, namely, those who are beneficiaries of a trust which was made perhaps thirty or forty years ago, where the court has no power to intervene?
On that issue, it is interesting to consider the events which led up to and the arguments advanced in relation to the Married Women's (Restraint upon Anticipation) Act, 1949. The Bill was introduced by the Socialist Government. It was intended, and does, in fact, enable, those married women who were formerly subject to restraint to deal with their property in such a way as, among other things, to avoid the incidence of tax. In my submission, that Bill and the arguments put forward by its sponsors provide a very close parallel indeed with this one.
The Bill was conceived in the early days of 1949. The House will remember a Private Bill which was called the Mountbatten Bill. The situation there was that Lady Mountbatten who, during the course of the debate on the Bill, was described as a very wealthy heiress whose property was subject to restraint, sought leave to introduce a Bill to remove the restraint on the grounds that high taxation had made it impossible for her to fulfil her public commitments from current income without embarrassment.
The Bill was opposed by a number of hon. Members on this side, and I understand that one of the main reasons for the opposition was that it was not right that such a Bill should be brought forward for one private person who happened to have the resources at her disposal to afford it. It was, therefore, I think I am right in saying—and hon. Members who were in the House then,

and let me say at once that I was not, will remember—suggested that if such measures were to be taken in respect of Lady Mountbatten it should be by means of a Government Bill which should apply to everybody—

Sir Lynn Ungoed-Thomas: Will the hon. Member explain a rather interesting aspect of the matter which has puzzled us a little on this side; why those same Members did not take exactly the same attitude to the Duke of Norfolk's Bill?

Mr. Crowder: Of course, I was not one of those who took any particular attitude to that Bill and, as the hon. and learned Gentleman will appreciate, it is sometimes very difficult to look into the minds of one's hon. Friends in these matters—

Sir L. Ungoed-Thomas: That is what the hon. Member is doing now.

Mr. Crowder: I am attempting to, but, as I say, I was not one of those who opposed or particularly favoured the Duke of Norfolk's Bill. However, if I may say so, that is straying somewhat from the point I was making.
I hope that the hon. and learned Gentleman will accept it from me that had I been in the House then I would have been the last person in the world to oppose the Mountbatten Bill. At the same time, he would agree that it was perhaps a good thing that it was opposed, and opposed on the basis that it was wrong that a rich, private person should, as it were, have the facilities of the House of Commons, because of her wealth, to bring forward a Private Bill, whereas such an opportunity would not be open to those with smaller resources.

Sir Hugh Lucas-Tooth: If my hon. Friend will permit me, I think the difficulty that the House feels is that the Mountbatten Bill did not, in fact, come to this House. It was introduced in another place and was thrown out there, and he is really saying what were the thoughts of hon. Members expressed publicly.

Sir L. Ungoed-Thomas: No, what was the Conservative view.

Mr. Crowder: I am much obliged. It is very interesting but it happened long ago now and is only of academic interest. Its only importance, and that is why I


mention it—as beginning at the beginning—is that it started the Married Women's (Restraint upon Anticipation) Bill, which was introduced in another place by no less a person than the late Lord Jowitt. That Bill became law, under the Socialist Government, and it is interesting to see what the learned Lord Chancellor, as he then was, had to say in respect of those principles which I know will be troubling the House. He said:
The ordinary married woman … can … raise a little ready money either by … selling part of her future income or if her children are of full age, by agreeing with them that some of the trust funds should be sold and divided between them in equitable proportions. The married woman in a pre-1936 settlement can do no such thing—that is to say, as long as she is married … The effect of this Bill on the Exchequer is purely incidental. If a man or woman not subject to restraint spends … half his or her property there is, of course, less property to be taxed. The Commissioners of Inland Revenue cannot and do not complain of this—
I would like the Commissioners to take the same attitude, of course, in relation to my Bill. Having said that the Commissioners could not and did not complain, the learned Lord Chancellor then produced the following masterpiece of understatement:
they continue on their way, taxing what they find and not taxing what is not there … To single out one particular class of married women and to restrain them—
Here, too, it is one particular class:
from doing what they wish with their property for the sole purpose of being able to tax it, would be most unfair. That is not part of the policy of His Majesty's Government, nor indeed, would such a policy even if it were just, be effective because even if the property of married women were artificially kept intact until the end of the marriage, it by no means follows that it would remain intact between the end of the marriage and the time when the Estate Duty came to be assessed."—[OFFICIAL REPORT, House of Lords, 5th July, 1949; vol. 163, c. 898–900.]
It would not be right to leave this matter without referring the House to what the right hon. and learned Member for St. Helens (Sir H. Shawcross) had to say. I think that I am right in saying that he was then the Attorney-General of the day. He said:
I am quite prepared to concede that in particular cases it might involve some loss to the Revenue—
as, indeed, this Bill would:
The Board of Inland Revenue and … the Chancellor do not consider that that is a

ground on which any objection can properly be made to this Bill.
I think that that, clearly, was the attitude of the Revenue in relation to that Measure, and this Bill, in my submission, involves very much the same or even less incidence, and one hopes that the Commissioners' attitude will not have changed.
The then Attorney-General went on:
Indeed, it would be a very hard principle of taxation if people were to be compelled to keep property in order that they should be liable to pay tax on it …. If anyone wants to say that dispositions of capital should be made illegal because they involve a loss to the Revenue, we shall give careful consideration to that view, but let us do it generally and not in relation, to this limited class."—[OFFICIAL REPORT, 7th November, 1949; Vol. 469, c. 910.]
It is such a class with which we are dealing in this Bill.
It will be seen from that that it was precisely on the grounds of fairness between all taxpayers that the Bill was supported. In other words, if it is right, fair and permissible for some to take steps to save tax then, of course, it ought to be permissible for all. One is almost reminded of a slogan used at the last Election, "Fair shares for all". It is for that reason, the Bill being based on that principle, that I have the support of certain hon. Members opposite who have been kind enough to add their names to it. In my view, those arguments which I have put forward should apply with equal force to lunatics, infants and other ascertained beneficiaries subject only to this, that such person must always have the protection and the assistance of the court.
It is only right to carry the argument a stage further and contend that the prevention of the sort of tax avoidance which my suggested change in the law would make possible ought no longer to be itself an objection on grounds of moral principle at all, because it seems to me that there is now little or no moral stigma attached to the process of tax avoidance. There is a good deal of difference between tax avoidance and tax evasion.
Reasons were very well stated in the Report of the Royal Commission on the Taxation of Profits and Income. Tax avoidance, from which must be distinguished tax evasion, is there defined as
some act by which a person so arranges his affairs that he is liable to pay less tax than he would have paid but for the arrangement.


The Report continues:
Thus the situation which he brings about is one in which he is legally in the right except so far as some special rule may be introduced that puts him in the wrong.
The Royal Commission goes on to say that there neither is nor ought to be a principle that a man owes a duty not to alter the disposition of his affairs so as to reduce his existing liability to tax. The Commission then gives two reasons, the first of which is that such a principle could never be maintained. A great deal of what is loosely called tax avoidance must, of course, consist of taking advantage of provisions which are expressly included in the Income Tax Acts for that purpose—for instance, entering into seven-year covenants, or investing in tax-free securities and so forth.
I should add that I believe it is well established—no doubt, I shall be corrected if I am wrong—that it is no part of the court's function to protect the Revenue in those cases where it has jurisdiction over the property of individuals.
I must apologise for having wearied the House with a long, dull speech because, as I said when I began, this is a dull Bill. But this is something which obviously needs doing. It is a tidying-up Measure and it is a fair, just and equitable Measure. With those principles in view, and having discussed the taxation and the moral side of the case, I hope, not unfairly one way or the other, I commend this Bill to the House and ask that it be given a Second Reading.

11.44 a.m.

Major W. Hicks Beach: I beg to second the Motion.
I am sure that it will be the wish of the House that I should congratulate my hon. Friend the Member for Ruislip-Northwood (Mr. F. P. Crowder) on the clear way in which he has explained his Bill. It is, of course, a complicated matter, but he has put it so clearly that I, who, I should disclose, am a solicitor dealing with a great number of trusts which will be affected by this Bill, wish that I could explain on other occasions such complicated matters in such a clear way.
In general, I support this Bill, but I have in mind one or two questions on its drafting and which I think it might be helpful if I mention at this stage. I

suggest that several Amendments would be advisable at a later stage. When I first read the Bill I thought that, in general, it had achieved its object, but I was rather puzzled by Clause 1 (1, b). My hon. Friend has given us an explanation and, if I may say so, a rather complicated example, from which I understand that this subsection is intended to deal simply and solely with any unascertained class of person or persons. It seems to me that this is a very complicated way of doing that.
There is a provision which I suggest is used constantly in drafting documents and which is much shorter than subsection 1 (1, b) in the Bill as well as being very much clearer. This is an expression which is constantly used and I suggest that to substitute for subsection (1, b) the following:
Any unascertained or unascertainable persons or classes or persons
would cover in simple language the exact point which my hon. Friend is trying to cover. That phrase is certainly understood by the courts and by ordinary conveyancing practitioners.
At the top of page 2 of the Bill one finds the expression "to any arrangement." I have never liked the expression "any arrangement," in legislation, because no one knows what it means. It almost invariably leads to litigation, and I would strongly suggest that my hon. Friend should insert some qualifying words after "any arrangement." I would suggest words which, again, are commonly used in conveyancing practice. The phrase "notwithstanding that it includes" would, in my judgment, improve the subsection and, at any rate, would put some limiting feature on those words.
The other provision which I have never liked in legislation is to be found in subsection (6):
Nothing in this section shall be taken to limit the powers conferred by section sixty-four of the Settled Land Act, 1925, section fifty-seven of the Trustee Act, 1925 or Section one hundred and seventy-one of the Law of Property Act, 1925.
It seems to me that if, in legislation, one seeks to explain that one is not limiting powers under any particular Section or Sections, it is apt to mean that one is apparently seeking to limit powers under Sections not mentioned. I would, therefore, suggest to my hon. Friend, with


respect, that that limitation is quite unnecessary. I do not think that there is anything in the Bill which could possibly be read as limiting what has been referred to, and I therefore suggest that this provision should be left out altogether.
If my hon. Friend and his advisers feel that that subsection should be included, I suggest that there is another provision, namely, Section 53 of the Trustee Act, 1925, to which reference should be made. I think that it must have been omitted in error. It is one of the Sections under which applications of this sort are commonly made to the courts to approve agreements, and undoubtedly that should be included if this subsection is going to be retained. In fact, if it will be any assistance to my hon. Friend I can give two examples which have occurred quite recently in practice where that Section has been invoked. I take it that it is just a slip in the drafting of the Bill. As I have indicated, it seems to me that it would be very much better without that subsection.
We have all had the advantage this morning of reading the very strongly worded leading article in The Times on the subject of the Bill. I do not quarrel for one moment with anything The Times says, except that I think that some answer should be given in so far as the suggestion is made at the conclusion of the article that applications under the new Bill, if it becomes law, as we hope it will, should always be made in open court.
As I understand the position, the judges have a discretion in this matter, but it has been the long-established custom in the Chancery Division and, to a great extent, in other Divisions of the High Court, that any applications or dealings concerning the interests of infants should not be made in public. I think that it would be a very dangerous precedent simply to over-rule that practice, as The Times seems to suggest. On the other hand, the suggestion that the judges should exercise their discretion to have cases of importance heard in open court is a good one, and I should have thought that that was a matter which could well be followed up.
I should not like it to be accepted that there should be a change of the present rule so that all applications concerning wards of court or the property of infants should necessarily be heard in open

court. In fact, I go so far as to say that, as a general rule, it would be most undesirable. None the less, the discretion of the judges in certain individual cases of importance might well be exercised more freely. I think that what I have said covers the point made by The Times, although it is not put in quite that way.
With all possible respect, I have ventured to advance, in the most helpful manner, certain amendments which I think would improve the Bill. I will conclude by repeating that my hon. Friend the Member for Ruislip—Northwood is undoubtedly to be congratulated upon bringing the Bill before the House, and I hope that hon. Members will see fit to give it a Second Reading.

11.53 a.m.

Mr. Eric Fletcher: I should like to join the hon. and gallant Member for Cheltenham (Major Hicks Beach) in expressing congratulations to the hon. Member for Ruislip—Northwood (Mr. F. P. Crowder) upon the admirably clear and lucid way in which he explained the principles underlying the Bill and the grounds and purposes for which it is introduced this morning. You will have observed, Mr. Speaker, that I am one of the backers of the Bill. In case one's attitude should in any way be misunderstood, I welcome the opportunity of giving the reason that I support the Bill in principle. In common with the hon. and gallant Member for Cheltenham, I have some reservations about matters of detail, though not the same as those which appeal to him. They are all matters with which, I think, we can deal satisfactorily in Committee.
The Bill is commended to the House on the ground that it will remove injustice and remove an anomaly in our present system of law. It will give the courts unlimited jurisdiction, enabling them in future to vary settlements even though infant beneficiaries and, perhaps, unborn beneficiaries are involved. In other words, it will give the courts a power to vary settlements similar to that which they now enjoy when all the beneficiaries are of full age.
As the hon. Member for Ruislip-Northwood has said, the argument is even stronger because, today, the courts have power to vary a settlement if one of the beneficiaries is a lunatic, and they have power also to vary a settlement, even


though there are infant beneficiaries, when the settlement comes up for consideration as a result of divorce. The question is, therefore, very clearly put: why should an infant whose parents are happily married be in a worse position than a lunatic or an infant whose parents are divorced? I can see no answer to that. Again, it is said, why should an infant who is interested in land be better off than one who is interested in personality? I can see no answer to that.
The hon. Member for Ruislip-Northwood, very sensibly, I thought, dealt in advance with possible objections to the Bill which might have been urged from this side of the House on the ground that, looking at it broadly, the Bill could do something to encourage or increase tax avoidance. It was on that ground that Lord Morton of Henryton, in the case of Chapman v. Chapman expressed some doubts in giving his opinion. I need hardly say that if I thought that the Bill were primarily or, indeed, at all calculated to enable people improperly to benefit from tax avoidance, I should riot support it. Hesitations on this score are adequately dealt with, I think, by the observations of the Law Reform Committee in paragraph 15 of its Sixth Report, where it is said:
The fact that some adults enter into 'tax avoidance' schemes of questionable character is no ground for refusing the Court jurisdiction to sanction on behalf of infants dispositions of their property which are beneficial to them and are morally unobjectionable.
That is a partial answer to the risk which is, I think, inherent in the Bill that, without adequate safeguards, there might be sanctioned revisions of settlements which might be regarded as morally objectionable.
The present safeguards are not, think, adequate, and it is here that I part company with the hon. and gallant Member for Cheltenham. I, too, read with great interest the leading article on this subject in The Times today. Whether that leading article had appeared today or not, it was my intention to say something about the desirability of all applications being heard in open court.
I think it is true to say that we have arrived at this position in the Chapman v. Chapman case because of the practice that has grown up in the past of these applications being heard in camera.

Mr. Philip Bell: Is not the real trouble that the judgment was not given in open court? Would it not solve all the difficulties if the judgment were given in open court? In that case the details of the child's life, property and relations would not be given. Has the hon. Gentleman considered that possibility?

Mr. Fletcher: I have considered that, as I have considered a great deal of the proceedings that take place in camera. In my view, there are far too many of those cases, and I am opposed to having so many. The tendency of the courts to hear applications and proceedings in camera should not be extended, and I certainly hope that the Bill will not extend it. I should be in favour of giving the full light of publicity to all applications of this kind. I would add a reservation, enabling the judge to have a discretion in special cases—as he does in divorce cases—to ask the Press not to publish details about an infant which might be prejudicial to it.
Reverting to my last point, I would say that it is historically true that one of the causes which produced the decision of the House of Lords in Chapman v. Chapman, in which they denied jurisdiction to the courts to vary applications in regard to settlements, was the very fact that in the past applications of this kind have been made in camera and have not been reported.
The Times takes that view, because it says that although the Law Lords in Chapman v. Chapman came to a decision which seems illogical and harsh, they did so because they found no adequate precedents for the jurisdiction claimed, and there were no precedents because, although the jurisdiction had been exercised, it had been exercised in the secrecy of chambers.
The public is interested in questions of tax avoidance whether the case concerns Lord Mountbatten, the Duke of Norfolk or an ordinary member of the public. The public is interested in judging for itself whether a certain scheme of tax avoidance is morally justifiable. Views may differ; this question of tax avoidance is not a subject upon which it is possible to be dogmatic, and the legislature often has to intervene to prevent abuses.
The hon. Member for Ruislip-Northwood referred to certain schemes of tax avoidance like seven-year covenants and the purchase of interest-free securities, which in general are not questioned, but he will be the first to admit that there are a great many other schemes where it is possible that moral judgments would differ, and there are some cases which are so glaringly objectionable that the legislature, with the consent of both sides, and under both Tory and Labour Chancellors of the Exchequer, intervenes to stop them, although they have been legal in the past. The only public safeguard is for these matters to be fully and freely ventilated in public, and it would be to the public advantage if any applications which are made under the Bill had to be made in open court.
As The Times says:
Why should the proceedings not be afforded the publicity necessary to enable those persons to come forward and assert their rights? Why should not every taxpayer be able to see for himself whether or not any loss to the revenue by reason of the exercise of this jurisdiction is outweighed by considerations of justice and fair play? Law in secret is a negation of law.
I support that sentence. The Times suggests that the matter is one which can be dealt with by an alteration of the rules of court. There I disagree. I should prefer not to leave it in that way. I hope that when the hon. Member for Ruislip-Northwood, has had an opportunity of considering the matter, will come to the conclusion that in the interests of justice, not only for the parties but for the public, it is right to take the view that these applications should be made in open court.
I hope that he will also agree that it would not be satisfactory to ask the House merely to agree to an alteration of the rules of court; that it would be far more satisfactory to write into the Bill itself the necessary amendment, and that proceedings under it should be in open court unless there is some special reason which can be defined, and where the judge thinks that there is an overwhelming argument for the case to be heard in camera.
In that way we shall get the benefit of all worlds. The Bill will then remove an injustice to a certain class of the community which, although not seriously penalised, do suffer at present; it will simplify matters for those who practise

in this branch of the law, like the hon. and gallant Member for Cheltenham (Major Hicks Beach), and it will serve the public purpose by enabling it to see and understand what is going on.

12.7 p.m.

Sir Patrick Spens: As far and away the oldest Chancery practitioner in this House, I congratulate my hon. Friends the Members for Ruislip—Northwood (Mr. F. P. Crowder) and Cheltenham (Major Hicks Beach) upon the introduction of the Bill, and the hon. Member for Ruislip—Northwood, in particular, for the brilliant way in which he, as a criminal lawyer, has gone through the intricacies of the Chancery Division. I have not the slightest doubt that as a result he will now have to divide his practice between the Old Bailey and the Chancery Division, as other people have done before.
Turning to the substance of the Bill—not for one moment would I suggest that the decision in Chapman v. Chapman was wrong. I think that it was clearly right. All the same, it is interesting to know that in the past—and I now go back to 1911 and the first variation of trust that I got through before Mr. Justice Joyce—there was not the slightest doubt that every judge in the Chancery Division believed that where infants and people suffering from an incapacity were concerned there was an inherent jurisdiction to do what the judges thought best for those persons.
I remember another much more complicated case than that to which the hon. Member referred. It came along just before August, 1914. I remember being the most junior junior in a large batch of counsel before Mr. Justice Younger—afterwards Lord Blanesburgh—and the last thing he did on the Friday preceding 4th August was to find that I was the junior and to give me the task of drawing up a very complicated order. Who eventually drew up that order or whether it was drawn up, I have no idea. I certainly did not. I had gone to my Territorial battalion. But there is not the slightest doubt that infants of many different families and unascertained persons were concerned. The whole order rested on the judge having an inherent jurisdiction to give full benefit to those classes. That has gone on right down the years until the case of Chapman v. Chapman. The result of Chapman


v. Chapman is, as the hon. Member for Islington, East (Mr. E. Fletcher) said, that it leaves one small group of persons, infants and people under certain incapacities, unable to benefit from arrangements which are beneficial to every other member of the community. Therefore, there cannot be the slightest doubt that this is a highly desirable Bill in every way and the very best instance of Private Members legislation introduced in this House. I want to congratulate my hon. Friend the Member for Ruislip—Northwood once again in having introduced the Bill
Now I want to deal with the question of tax avoidance. It has been mentioned so much in the speeches we have heard. When I started as a junior at the Bar, tax avoidance was not a matter of anything like the incidence it is today. The applications in which we were concerned were not to avoid duty but to preserve property. Time after time property was tied up by trusts and could not be dealt with in a way beneficial to those interested. That was particularly the case with, for instance, large blocks of shares in private companies. Perhaps the private company was going wrong and something had to be done. It was only by a scheme of arrangement altering the trusts and authorising, perhaps, shares to be sold or money to be raised on them that the property could be preserved and increased. Those were not schemes to do down the revenue. On the contrary, they were schemes by which in the end the revenue gained because property was preserved. I understand that since I left the Bar there are now perhaps more schemes which are actuated by the incidence of high taxation.
The proper answer has been given, I think, by some of my hon. Friends, and I do not propose to repeat it. I hold that generally we cannot run the life of the nation by forbidding things that are beneficial to members of the community merely because the revenue may lose something out of the transaction. If the arrangements are beneficial and help the citizens of the country, then we cannot stop them merely because risk to the revenue is involved. I do not believe that these schemes are generally instituted for revenue tax avoidance purposes at all. They are brought in for the benefit of the families, and that is

a thing we all desire. I still believe that money is better in the pockets of the citizens than in the Revenue. The more we can keep it there, the better it is for the country.
Now I come to the more difficult question which has been raised and pressed by the hon. Member for Islington, East. It has always been the practice ever since I came to the Bar in 1910 that all applications affecting infants in the Chancery Division should start in Chambers. The practice has been handed down almost from the very beginning of the Chancery jurisdiction. It has never prevented the proceedings, if a matter of great importance is concerned, being adjourned to court for argument and for a decision to be given in open court. I am bound to say that I should resist most strongly the introduction of a Clause to make it compulsory for such applications to be heard in open court. The right thing is to leave it to the discretion of the judges concerned and let them deal with it in a way most beneficial, not only to the individuals concerned, but in a way which is in the public interest. I think that would be right.
Going back to the early type of application when we used to ask for a variation of trusts to try to get out of some trouble over a property, it would be very awkward in open court to read out affidavits alleging that a private company was in grave financial difficulties and going down hill and that some special measures should be taken to preserve it. That will not help the credit of the company. It will undo any possible benefits that might come from the variation of the trusts even before the application is finally decided. There must be many cases where the right course is to hear the application, at any rate in the first instance, in Chambers. I am talking now only of the Chancery Division. Chancery Masters are very experienced people and they know quite well what sort of application should be heard in Chambers and what sort of application should be heard in open court.
I hope that nothing will be put into the Bill making it compulsory to have these applications in open court, although I am certain, having regard to what was said in the speeches in Chapman v. Chapman in another place, that the Chancery judges would obviously give


great consideration to the criticism that the difficulties the judges were in in Chapman v. Chapman arose from the fact that the decisions had not been given in open court. I would leave it to the Chancery judges to make up their minds in what way they would deal with the matter.
I would like to end by saying that I hope this Bill will find its way as quickly as possible on to the Statute Book, because I think at present people are handicapped by judges not having this power. The sooner it is given to judges the better.

12.18 p.m.

Sir Lynn Ungoed-Thomas: I am sure that everybody has been impressed by the tale of anomalies which now exist in this branch of the law. The Sixth Report of the Law Reform Committee brings it out very clearly, as did the admirable speech of the hon. Member who introduced the Bill. I do not propose to go over that ground again.
What the Report also brings out very clearly—and it faces it very squarely in a way which I regret the hon. and learned Member for Kensington, South (Sir P. Spans) did not—is that this Bill is a tax avoidance Bill. I am not impressed by what the right hon. and learned Gentleman said about the tax avoidance provisions being incidental to other arrangements about property. I know quite well that in origin, of course, that is so and that is how the jurisdiction developed.
But one of the advantages and one of the virtues of this Committee's Report is that it fairly and squarely faces the point that its proposals are, in fact, tax avoidance proposals. The hon. Member for Ruislip—Northwood (Mr. P. Crowder), who moved the Bill, also faced that. What we have as a House to decide is whether or not we are in favour of a tax avoidance Bill on the lines recommended by the Report of the Law Reform Committee.
I stand unreservedly, if I may say so with respect, by the statement made by the late Lord Jowitt, and quoted by the hon. Gentleman the Member for Ruislip—Northwood, when Lord Jowitt, dealing with what became the Married Women (Restraint upon Anticipation) Act, which

was an Act to remove the disability of restraint upon anticipation affecting married women in dealing with their property, said:
To single out one particular class of married women and to restrain them from doing what they wish with their property for the sole purpose of being able to tax it, would be most unfair."—[OFFICIAL REPORT, House of Lords, 5th July, 1949, c. 900.]
That opinion would commend itself to every fair-minded person, whatever his party.
The Bill with which Lord Jowitt was dealing, however, was a Bill of general legislation to remove the restraint upon women generally throughout the country and not in itself involving any application to the court. Let us be perfectly clear about it, that the provisions of this Bill go a good deal further than the principle which was enunciated by Lord Jowitt upon the Bill which he was commending at that time.
The practice of the courts, however, has already gone farther. The practice is stated by the Law Reform Committee in paragraph 14 of its Report:
… if a husband and wife are divorced, the Divorce Court can sanction variations in their marriage settlement which are designed to prevent the trust fund being diminished by taxes or death duties.
There we have in individual cases in the Divorce Court the court exercising a jurisdiction for the purpose of avoiding taxation.
The principle has been before the House for consideration upon the Duke of Norfolk's Bill. In that Bill the proposal was to remove, in one individual case, a disability. That is, in effect, what it amounted to. It was not proposed to remove that kind of disability in all cases by general legislation such as followed in the Mountbatten case. I myself consider that it would be far better for this House to legislate generally than to legislate for an individual case, but the House did decide, in the Duke of Norfolk's case, that for the purpose of avoiding taxation and Estate Duty that Bill should be passed, to put him in the same position as other people who are not subject to the disability to which he, like some others, was subjected by Acts of Parliament.
Therefore, we have not only the practice of the court but we have in principle the decision of this House, that it is at


any rate legitimate to put people under a disability in the same position as people who are not under a disability even though it is for the express purpose of so arranging the affairs that they avoid the incidence of taxation and of duties.
Under this Bill, the arrangement would be that in each individual case where there is a disability an application would be made to the court and the court would then exercise its discretion as to whether or not it would be fair and just as between all the parties interested in the property, and whether it would be beneficial for the trust as a whole and for all those interested in the property as a whole, to have the scheme passed to avoid the incidence of Estate Duty or taxation as the case may be. Of course, there may be disputes between parties and any arrangement may be unfair between the parties, but we are not at the moment concerned with that.
What we are concerned with is that it should be right for the court to decide that, if a scheme were for the benefit of the property as a whole, the scheme should be sanctioned by the court on behalf of the infants, who are, of course, under disability and cannot act for themselves.
Isolating, for the moment, the taxation element in an application made to the court in this way, it is inconceivable, of course, that a court should say, "No, it is not for the advantage of the trust as a whole that the application should go through." Because, of course, it is: it must be in every single case. All that the court, in effect, would be concerned with would not be the avoidance provisions—I am dealing now, of course, with legitimate avoidance, not improper evasion or anything of that sort which a court would never sanction—because it would sanction the avoidance provisions in any case and all that the court, in effect, would be concerned with would be the fairness of the arrangement, whatever it was, as between the parties interested in the trust.
I am coming now to Lord Morton's point, which I do not think was adequately dealt with either by the hon. Gentleman the Member for Ruislip—Northwood, if I may say so with respect, or, if I may say so with equally great respect, by the Law Reform Committee itself. If it is to be proper and right

that an application should be made to the court for the purpose of avoiding the incidence of Income Tax or Estate Duty—and it would be proper if this Bill were passed—then, if there is a change in the law, it will be equally proper for the applicants to go back to the court and say, "We want to alter the arrangements." Of course it would.
I cannot help agreeing with Lord Morton's criticism of the danger of this developing into a game of chess. Let us face it squarely. If it is right to make an application to avoid taxation—and it would be granted, obviously, because it would be beneficial to the trust as a whole—it would equally be legitimate upon a change in the law to make another application to avoid the incidence of taxation which is produced by the change in the law. Of course, the thing would go on. Lord Morton faces that squarely and brings it out clearly. What the Law Reform Committee says about that is:
We doubt whether these fears are justified.
The Committee does not, however, develop any kind of reasoning to sustain that statement of its doubt.
It is true it goes on, as my hon. Friend the Member for Islington, East (Mr. E. Fletcher) pointed out, at another part of paragraph 15 of its Report, to deal with improper evasion. I do not want to convey any wrong impression about this and so I hope the House will bear with me while I quote the passage:
Nor is it likely that any Judge of the Chancery Division would give his sanction on behalf of infants or potential beneficiaries under a settlement to any scheme of a kind which, as a citizen and a taxpayer, he would not think it right to enter into with regard to his own property.
Of course, I fully agree with that. The paragraph continues:
The fact that some adults enter into 'tax avoidance' schemes of questionable character is no ground for refusing the Court jurisdiction to sanction on behalf of infants dispositions of their property which are beneficial to them and are morally unobjectionable.
That was the passage that my hon. Friend had in mind. I agree with that and fully accept it, but that does not in the least touch Lord Morton's objection, which is not directed to the improper evasions, because, of course, no court would sanction an improper evasion; it


is directed to a case where the Legislature lays down that it is proper to make application to the court and proper for the court to grant the application if it is beneficial to the trust; and benefit to the trust is the sole test.
Of course, in all these cases, even if there is a change in the law altering the incidence of taxation, it would be quite legitimate to go to court, and, of course, the court has not only the right to sanction but the duty to sanction a proper application. Therefore, we are landed in the position contemplated by Lord Morton in his speech.
We must not just pooh-pooh Lord Morton's objection, but face it quite squarely and say whether, in spite of his substantial objection, we are or are not in favour of the principle in the Bill. That brings me to the observations of my hon. Friend the hon. Member for Islington, East and the right hon. and learned Member for Kensington South about publicity. Quite clearly, if there were publicity in all these applications and the applications were to be made in open court in each case, and we had Lord Morton's cat and mouse game played in open court, the country could see exactly what was going on. The Legislature and the country as a whole would be able to follow the development of applications under the Bill and much of the objection which Lord Morton has to the Bill would possibly lose its substance.

Sir H. Lucas-Tooth: The hon. and learned Member is suggesting that in these cases of what one might call "leapfrogging", publicity should be given where there are infants or other people under disability. What does he say about a case where there are no infants? Does he suggest publicity in those cases, or does he want to put infants in a worse position than other people?

Sir L. Ungoed-Thomas: No. Where no infants are involved in a trust, where the parties are sui juris, they can dispose of property in exactly the same way as any person who owns the property absolutely. We are concerned with the principle how far the courts should intervene to sanction schemes of this kind. I am not objecting to the principle of the courts intervening. I not only do not object to it, but I think it ought to be done, for the reasons that I have mentioned. If there were publicity—and I shall come to

whether there should be or not in a moment—by these cases being heard in open court, the substance in Lord Morton's objections could be dealt with, if they arose.
On the whole, as everybody must be, and particularly lawyers, I am in favour of having matters heard in open court as far as possible. The more we practise in the law the more anxious we are that matters should be heard publicly and not secretly at all. But, of course, there are limits in certain matters. I am personally strongly opposed to unrestrained hearing in open courts of preliminary investigations before magistrates, particularly in cases like murder. I do not consider that as in the least detracting from the principle, which I hold strongly, in favour of cases being heard in open court. The right hon. and learned Member for Kensington, South knows as well as I do how very undesirable it would be in a vast number of ward-of-court oases to have these people's private affairs, the difficulties of their families and sometimes heartrending and atrocious conditions exposed in open court, to the embarrassment of the children. Difficulties of that kind can conceivably arise in applications to the court under this Bill but, on the other hand, I am not impressed by what the right hon. and learned Member for Kensington, South said about commercial companies being embarrassed by having cases heard in open court.
All parties involved in litigation, or course, would almost invariably prefer to have their matters dealt with in secret rather than in open court, but that is not the only test. It is important that litigation as a whole should be heard openly. In these cases it is not only the parties that are concerned. The country is concerned. Human considerations which affect infants might arise and make it desirable to hear a case in camera, but unless considerations of that kind arise I do not see why these cases should not be heard in open court.
The difficulty at the moment is that the general practice in the courts is to hear all these oases in chambers, in other words in camera. As hon. and learned Members know perfectly well, they are heard openly only if there are some special reasons, such as a difficult point of law which has to be decided and the case should be reported on a point of


law. I am rather attracted by the suggestion that there could be a solution on the lines of hearing the judge's decision in open court, instead of having the evidence and all the rest of it in open court; but I certainly feel that the present practice of hearing all these cases in chambers, in the absence of some extraordinary circumstance, might not be a desirable practice.
I should hesitate very much to support an Amendment to a Bill which would simply make a general sweeping provision that all these cases should be heard in open court. It is a matter in which there are many conflicting considerations and which requires investigation. It would be of the greatest advantage to the House if this matter could be considered by such bodies as we have had presided over by Lord Justice Jenkins, and to have their recommendations about it.
It would be desirable to have in an investigation of that kind not only lawyers, but laymen as well, and to give the House and the country the advantage of a considered view after a full investigation, which we cannot possibly conduct here. All that we can do here is to indicate the kind of concern that we have and why we are a little perturbed about the kind of difficulty which has been raised, for instance, in the article in The Times this morning. If the Bill goes through its various stages, I hope that the Government will state at some time whether they would favourably consider setting up a committee to inquire into the matter.

12.40 p.m.

The Solicitor-General (Sir Harry Hylton-Foster): It might be a convenient moment for me to intervene to indicate what the Government think about the Bill in broad outline. I should like to add my congratulations to the many that have been directed to my hon. Friend the Member for Ruislip—Northwood (Mr. F. P. Crowder). Those who were fortunate in the Ballot have great benefits to bestow and, like all hon. Members, I am very glad that my hon. Friend's benevolence has fallen in the direction of this Bill.
I think the House would like me, because no one else has done it yet, to express the thanks of the House in general

to the members of the Law Reform Committee. They are very busy and distinguished people. They do not get paid for what they do and put in brilliant and careful labour which enables fortunate people like my hon. Friend to be able to bring before the House a Bill of this kind. I am sure the House would wish to express their thanks to the Committee.

Sir L. Ungoed-Thomas: That is a most awful oversight. Of course, I associate this side of the House most fully with the observations of the Solicitor-General, and I am sure that we are all extremely grateful, as our remarks have in fact shown during the course of the debate, to the Law Reform Committee for the excellent work that it has done.

The Solicitor-General: I am obliged to the hon. and learned Member. I knew he was feeling like that, and I was in no sense trying to taunt him in respect of any omission.
The hon. Member for Islington, East (Mr. E. Fletcher) and my hon. and gallant Friend the Member for Cheltenham (Major Hicks Beach) have mentioned some matters which, I think they would agree, are Committee points relating to the drafting. So far as the Government are concerned, they would be very glad to give such assistance as they can to my hon. Friend the Member for Ruislip—Northwood in the consideration of those matters. I am not quite sure that I was quick enough to get down the form of words which the hon. Member for Islington, East was suggesting for Clause 1 (1, b). I hope that before he presents us with something of the kind in Committee, he will be able to clear my mind about it, as I understand that my hon. Friend the Member for Ruislip—Northwood is not seeking to say to someone whose identity is known, whose face, form and figure one can see, and also his beautiful tweed suit if need be, that he, if sui juris, should not trouble to come to the court and consent himself.
This provision, as I understand it, is directed to dealing with the person who, not yet ascertained as a beneficiary, simply cannot be found to come and consent himself because his existence is not known. The idea is, I understand, that if all that prevents him from consenting is that the event that would qualify him as a beneficiary has not happened, if


he is available to consent he will have to come and do it in person under this Clause as it is now drawn.
To take an illustration such as was given by my hon. Friend, I understand that a brother not entitled to be a beneficiary at this time because lots of events would have to happen before he became one, but who is hale and hearty and capable of appearing and consenting would have to come and consent himself.
I was somewhat alarmed by what the hon. Gentleman the Member for Islington, East appeared to be saying in the course of discussion as to whether the application should be heard in court or in chambers. He appeared to be saying—I am not sure that he meant it fully—that there was more danger of improper tax avoidance occurring or undesirable tax avoidance occurring if these applications were heard in chambers.

Mr. E. Fletcher: No.

The Solicitor-General: If the hon. Gentleman was not saying that, I withdraw. I think it is perfectly clear that he and everyone would agree, as the hon. and learned Member for Leicester, North-East has just said, and the Committee said, that no Chancery judge in existence would consent to any kind of scheme or arrangement which he himself would not think perfectly proper as a lawyer and citizen.

Mr. Fletcher: Perhaps the Solicitor-General will allow me to clarify what I was saying. I entirely agree with what has been said by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas), who quoted a paragraph from the Law Reform Committee to which I referred. To make it abundantly clear, may I quote it again:
Nor is it likely that any Judge of the Chancery Division would give his sanction on behalf of infants or potential beneficiaries under a settlement to any scheme of a kind which, as a citizen and a taxpayer, he would not think it right to enter into with regard to his own property.
I should add this. There is not quite the clear distinction which my hon. and learned Friend suggested between tax avoidance schemes which are unquestionably ethical and those which are not. I think that there are certain borderline cases to which different moral judgments

apply and in which, therefore, the public have an interest as well as the parties. I think that the desirability of these applications being made in open court is that they can have the proper gaze of publicity so that the public can judge on the merits whether they are legitimate borderline cases.

The Solicitor-General: I feel confident that that really was the view he was presenting and I withdraw my ill-founded alarm, because I suspected that we should be in agreement about the position.
As to the serious matter of whether or not these applications should invariably be heard in open Court as opposed to Chambers, I cannot at this moment offer any particular pledge. I am confident that my noble Friend the Lord Chancellor will be fully attentive to what has been said in this House today, and that is as far as I could be expected to go today, or do go today.
I am sure that the difference between the disputants in the matter seems to be remarkably small. At the present moment, the learned judge has a discretion as to what he will hear in open court or not. The learned judge has that discretion now. Persons on both sides of this controversy desire him to have that discretion in the future, and the question is really which way he should exercise such discretion as should be left remaining in him.
I do not suppose that any hon. Member has urged today any consideration to which Her Majesty's judges in the Chancery Division are not very well alive. They have been doing this work for a long time and most of these matters have come before them before. I profess a very personal point of view that the larger the discretion kept in their hands the happier I shall be.

Sir L. Ungoed-Thomas: I would not like a false impression to arise on this point. The difficulty is that all this administrative or quasi-administrative jurisdiction has been over the years as a matter of practice exercised in chambers. I respectfully agree with the Solicitor-General that I think the difference in principle, if there is a difference in principle, between us in this debate on this matter, is comparatively small. It would in practice lead to a mass of the applications being heard in open court instead of being


heard in chambers, and it would make a very substantial difference to the number of cases being heard in open court or in chambers.

The Solicitor-General: I am glad that between myself and the hon. and learned Gentleman there does not seem to be much conflict. We are agreed that at least the matter is worthy of looking at by my right hon. Friend.
I turn now to a more difficult matter. Obviously, my enthusiasm for this Bill cannot be so unqualified as that of some of my hon. Friends. After all, the Government of the day have a duty to protect the Revenue. I thought that the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas), put it too high when he called this a tax avoidance Bill. I consider that an unkind label. But the hon. and learned Gentleman was completely right in supposing that people will seek to use and will succeed in using it for purposes which result in perfectly legitimate tax avoidance. It is while facing that difficulty that the Government ask the House to support this Bill.
It must necessarily be accepted that there is a risk to the Revenue involved and that it may involve some Revenue loss. The more one looks at this matter, I submit, the more it is obvious that on balance the case for the Bill, despite that disadvantage, is overwhelming. There is the point to which hon. Members have already referred, the fact that some adults could turn these provisions, designed to protect infants from being robbed of property, into grounds for making their own private schemes. But were those persons all adults sui juris they could just sit round a table and do this. There is no conceivable reason, in justice or in common sense, why people, because they are infants, should not be allowed, or the courts be allowed on their behalf, to do the things which could be done by beneficiaries if they were adult.
I think it right to emphasise another point made by the Law Reform Committee; the fact that real hardship occurs to beneficiaries now under settlements where matters of practice either do not arise or are of small importance. The instance which the Committee gives appears in paragraph 17 of the Report.

There are many cases of settlements involving quite small sums in which it would be beneficial to all the beneficiaries to be enabled to spend the capital but they are unable to obtain leave of the court to do so, with the result that parents have an income insufficient for the needs of themselves and their children, and the children are unable to be given education and training such as would enable them in the future to provide for their own needs
That has nothing whatever to do with tax avoidance and represents a real evil, a real hardship, arising under the law as it now is.
I prefer not to indict this as a tax avoidance Bill but rather to call it a "fair restrictions for all" Bill. It will place persons not sui juris in a parallel position as regards adult persons for the purpose of invoking the jurisdiction of the courts. The more we look at it, the more it is apparent that both justice and logic require that the law be changed in the way this Bill will change it, despite the disadvantages of the Bill which are apparent. It is not right that the competence of the court to approve an arrangement of the kind here contemplated should be dependent on a totally irrelevant consideration, like whether or no the settlement was ably or incompetently drawn or on the nature of the property comprised in the settlement or the like. It is intolerable that the law should be left like that, and so the Government think that on balance, and despite its disadvantages, the Bill should be accepted by the House.

12.54 p.m.

Sir Hugh Lucas-Tooth: I support the Bill and congratulate my hon. Friend the Member for Ruislip—Northwood (Mr. F. P. Crowder) for bringing it forward. Almost everything possible has been said in support of it, and I have even more diffidence about speaking as it is now 18 years since I was last in court as a junior member of the Chancery Bar. A good many cases have been decided since then, including the Chapman v. Chapman case.
To refresh my memory on these matters, I looked into a leading and somewhat elementary textbook. I found a passage which I think relevant, though I apologise to those of my hon. Friends who are lawyers because it will be nothing new to them.
The authority by virtue of which the Court of Chancery created equitable rights


and provided equitable remedies arose out of the delegation to its head, the Chancellor, of the King's prerogative to afford his subjects relief, where justice so required, in individual cases where the common law gave either no remedy at all or a remedy which was inadequate.
It might be thought, in the light of such a passage which correctly defines the ambit of the equity law, that a Bill such as this is unnecessary. One might suppose that the powers proposed to be granted by this Bill were the very essence of equity. But, of course, the quotation I have given is in the past tense, and although the body of law known as "equity" was built up by the Chancellor and the judges, it is no longer growing or capable of growing, and must be regarded as something which can now be altered only by the action of Parliament.
As all lawyers know, equity is now a precise body of rules strictly construed and, except for the decision of another place in the case of Chapman v. Chapman, I still think that it is a most excellent body of rules. Nevertheless, it needs bringing up to date from time to time and this is an occasion when we can bring part of the rules up to date. Parliament has always been ready and willing to alter the rules of equity when necessary, and several hon. Members have referred to the last case in which this was done in a substantial way, when at the instigation of the then Labour Government the principle of restraint against anticipation by a married woman was finally removed.
As the House knows, equity acts through trusts, and it was by the enforcement of trusts that the Chancery Courts compelled those to whom property was given to carry out the wishes of the trustee or donor of the property as the case might be. There are two ways in which the policy of the courts might have developed. On the one hand, the court might have given trustees considerable freedom to do what they thought best within the general ambit of the wishes of the testator as expressed in his will, or, on the other hand, the courts might have compelled trustees to carry out strictly and to the letter the precise words in the will of the testator. Broadly speaking, it was the second of those two courses that the courts have followed. Unless the will or testator gives a discretion to the trustees, they

have little latitude. They must act strictly in accordance with the law and the rules laid down for them, and on the whole I think that has been a sound principle. It is the principle which underlay the speeches in another place in the case of Chapman v. Chapman, but it is not one that was necessarily to be followed or that we need necessarily follow now.
Indeed, in Scotland the tendency has been in the other direction. Trustees in Scotland have been given a good deal more power, and they can act in a different way. They are not obliged to be unanimous and they can act by majority. We might consider trying to deal with the matters involved in this Bill by adding to the powers of trustees rather than by insisting upon their being kept narrowly within the powers given to them by testators and having to go to the court if they wish to vary those powers.
On the whole, the English principle of strictness is right and better than giving more latitude to trustees. But the principle has led and must lead to difficulties where circumstances change. Therefore, it seems desirable that there should be some machinery for giving trustees additional powers or for enabling trusts to be modified when necessary. That machinery already exists in the court. But, unfortunately the powers of the court are limited at the moment in effect to the making of orders to deal with emergencies or to the taking of action to salvage a trust estate.
The Bill proposes very considerably to enlarge those powers. The fundamental question of the Bill is: is it morally right to allow people who are interested in trust property to deal with it otherwise than was expressly stated by the person who gave them that property? Should the wishes of a person who may have died twenty years or even fifty years ago override the wishes of those who are now entitled to that property?
I think that everyone would answer the latter question in the negative. We would all say that where property is in the hands of a number of adults who are able to deal with it themselves they should be able to do exactly as they wish. Indeed, that is the present law. It is only when one or more people interested in


the property are under age or of unsound mind, and therefore cannot agree to the property's being dealt with otherwise than in accordance with the trust, that any difficulty arises.
The purpose of schemes and proposals to vary trusts is very often nowadays the lightening of taxation on a trust. I do not agree with my right hon. and learned Friend the Member for Kensington, South (Sir P. Spens). I think that taxation is usually a very important factor in the minds of the people concerned. If the people concerned are adults they can take such measures as they please, and it seems unfair and improper to say that because one of them is either a child or a lunatic all of them should be prevented from taking any such action. That would be unjust. I hope that the House will therefore give the Bill a Second Reading.
The hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) spoke of the need for publicity in connection with the approval of these schemes. When he started I thought I should find myself differing from his views, but his concluding remarks showed clearly that, as my right hon. and learned Friend the Solicitor-General said, there is not a very great deal of difference on that score between any of those who have taken part in the debate. As much as possible of these cases should be heard in open court. There are obvious objections to doing so when infants and people of incapacity are concerned.
The right principle to be applied in this type of case seems to be that where the approval of the court is sought to a scheme with infants involved, it would be unfair to give publicity to the scheme solely on that account. If there had been no infants, the matter could have been done without any publicity. When the sanction of the court is sought to a scheme which could not be carried through by the parties, even if all of them had been sui juris and able to agree themselves—

Mr. Philip Bell: What possible scheme can there be if all the people are sui juris and can carry it out? They can do what they like.

Sir H. Lucas-Tooth: There are trusts which cannot easily be broken, even if

all those concerned are sui juris. When the court is asked merely to give approval on behalf of those who cannot give approval themselves, there is good reason for saying that the general rule regarding cases concerning infants should apply. That appears to be the logic of the case. Unless the proposals are in the interests of the child the court will not approve. I do not think that any one has suggested that in, for example, the Chapman case, the proposals were not in the interests of the infants involved. In those circumstances, all we can say is that the scheme was refused on the ground that the court lacked power to approve.
I hope that the House will approve the Bill. Amendments may be put forward in Committee, but the principle is entirely sound and is in accordance with legislation which has been passed through this House during a considerable period.

1.10 p.m.

Mr. Philip Bell: I hope that the House will excuse me for intervening. I know how unpopular it is to be the last speaker in a debate of this nature, but I have been present all the time, and, to use a vulgar expression, it is "rather up my street".
I do not intend to review everything that has been said, nor to describe the process of equity, nor discuss the whole of the Bill. That has been done admirably already, but I have a new point to make. Before mentioning that, I wish to refer to the question of publicity in reference to proceedings, which does not really arise directly out of the Bill because the Bill makes no reference to it. It is a sort of afterthought arising from an article in The Times this morning.
On the whole, I do not find it difficult to agree with what has been said. The practical difficulty is that there has grown up a tradition that anything to do with infants must be heard in chambers. No one ever bothers to consider whether it really matters or not. If one went to a judge in chambers and asked, "Why can we not have this in open court?" he would say, "No, we always have this in chambers." It is a tradition and no one ever bothers about whether anyone would be hurt if it were in open court. There is a blanket rule and I would agree that that rule should be removed, not in this Bill but in other circumstances.
The next point is about the consent of the court. There is a lot of confusion about the consent of the court, because there are various forms of compromises and agreements which the Bill will cover. It may be that most of them will be concerned with tax avoidance, but, on the question of tax avoidance, the job of the court is extremely small. If there is a question in which ascertained infants are concerned the court has merely to say, "Yes" if the infant benefits, and it does not matter what others say as they are sui juris. It is only in the really complicated matters that the court has to approve settlements. Otherwise, the court does not mind if people want to give their money away. It does not have to approve their action; it is only concerned with the interest of the infant. Generally under the Bill, the only function of the court would be to give consent on behalf of the infant if the bargain was a good bargain from the point of view of the infant.
Another point which I hope my hon. Friend the Member for Ruislip-Northwood (Mr. F. P. Crowder) will consider at another stage is that made by Lord Simonds in Chapman v. Chapman when discussing this matter as the law stood at the time. He made a point about the settlor. The first thing to notice is that there were very great powers exerciseable by the court—not negligible powers—in dealing with trusts. The court could alter the investments; it could alter the beneficial interests for the purposes of maintenance. It could deal with salvage and over a varied range it had powers, but it could not simply alter the beneficial interest, even if that were agreed by all the adults.
Lord Simonds quoted what he called the "old law" and said:
It is the function of the court to execute a trust, to see that the trustees do their duty and to protect them if they do it, to direct them if they are in doubt and, if they do wrong, to penalise them. It is not the function of the court to alter a trust because alteration is thought to be advantageous to an infant beneficiary. It was, I thought, significant that counsel was driven to the admission that since the benefit of infant was the test, the court had the power, though in its discretion it might not use it, to override the wishes of a living and expostulating settlor, if it assumed to know better than he what was beneficial for the infant. This would appear to me a strange way for a court of conscience to execute a trust.

I ask my hon. Friend to think for a moment about that before we reach Committee stage. There is a tendency now, where property is given for any purpose, certainly public purposes, for someone to discover that those purposes are not so very good after all and that he would like a Bill to alter them no matter what the settlor gave the property for.
In the case of a settlement, not by will but by deed, where the settler is alive he may well have known that there were infants and—not on the tax point—might have known the pressures that might be brought about. He will say, "I will make the settlement, because this is my judgment and what I want." Those are his terms and it is his money. That is his trust and the Court of Equity has to carry out his trust. In those circumstances, where the settlor is alive and not wanting to see the provisions he made in regard to the infants upset, it seems a little hard that the parties and the judge, on the part of the infant, should be able to change the settlement because they think it is better.
The settlor might well make his settlement knowing there was an infant concerned and make his determination in assessment of the character and prospects of the infant. I feel that if the settlor does that and sets up the trust it should not be possible to over-rule it—unless the settlor agrees—in cases where known infants are involved, or persons whose existence he foresaw. It seems a small price that in settlements inter vivos he should be consulted.
It is so easy to think that we are wiser than our ancestors, as was mentioned in Chapman's case, that really nothing matters, and everyone should have second thoughts and that no contract binds if one can think of a better one. Trusts, it is now learned, ought to be varied according to the object or the circumstances of everybody! But there is something to be said for having a kind of fixed point which will give settlors a sense of responsibility and a sense of security that their settlements are not just bits of paper which people can alter as they think fit.
I appeal to my hon. Friend, when considering the Bill—which I join in welcoming—to consider whether he really wants, in the words of the Lord Chancellor, that these settlements inter vivos should be altered notwithstanding "the living and


expostulating settlor." I hope that my hon. Friend will find some way of reconciling my point of view with his Bill.

Question put and agreed to.

Bill accordingly read a Second time.

Committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).

Orders of the Day — DIVORCE (INSANITY AND DESERTION) BILL

Order for Second Reading read.

1.17 p.m.

Mr. W. F. Deedes: I beg to move, That the Bill be now read a Second time.
This is a short Bill whose objects are, I think, fairly plain. I hope very much they will be generally acceptable. The Bill seeks to make a small contribution on the lines recommended by the Royal Commission to those who are seeking divorce on grounds of insanity. I do not think those circumstances require any embroidery from me. Nor do I think it necessary for me to rehearse the background against which the Royal Commission made its modest recommendations. Those who are interested in them can read, and will have read, the relevant paragraphs in the Royal Commission's Report, mainly paragraphs 172 to 209 and 252 to 263, and will appreciate how very carefully the Royal Commission went into and balanced considerations which arise from the present law.
It did not propose any fundamental change in the law on the retention of insanity as a ground for divorce, but it did discuss and suggest certain remedies to meet small anomalies in the present law which can lead to causing those concerned additional suffering and hardship. This Bill is designed to give effect to those remedies. Perhaps the House should know that of the 149 recommendations in respect of England and Wales and the 81 recommendations in respect of Scotland which the Royal Commission put forward a great many have already been put into operation by rules of court or by administration. There are others, these among them, which require legislation.
To explain the first, if not the principal, provision of this Bill, it is necessary to say a word about the present law. Under Section 1 (1, d) of the Matrimonial Causes Act, 1950, a husband or wife can obtain divorce on the ground that the other party to the marriage is of incurably unsound mind and has been continuously under care and treatment for a period of at least five years immediately before the presentation of the petition.
Section 1 (2) also provides that a person shall be deemed to be under care and treatment only under four conditions. I do not think I need trouble the House with those four conditions in detail, but the point which should be made about them is that they all lay emphasis upon the certification of the respondent as a person of unsound mind.
It was a point of substance made by the Royal Commission that there is an increasing tendency to regard certification as the last step in a course of treatment. It may be worth recalling the passage of the Royal Commission Report in which this is discussed. It is paragraph 177, which reads:
The chief criticism of the present law arises from the fact that, subject to the minor exception already noted in respect of England, divorce is available to a spouse only it the other spouse has been a certified patient for at least five years in a mental hospital or similar institution. There has been an increasing tendency, however, to regard certification as the very last step in the course of treatment for mental illness and then to be taken only when it is imperative for the patient's own welfare or the public safety.
The Royal Commission went on to elaborate this point in paragraph 178:
… while it is desirable to avoid certification as far as possible, this may result in considerable hardship for the patient's spouse. The patient may have spent some years in a mental hospital before he is certified; by that time it may be clear that his insanity is incurable and that all hope of the resumption of a normal married relationship must be given up, yet his spouse has to wait until the full period of five years' care and treatment as a certified patient has elapsed before taking divorce proceedings. It is also possible for relief to be completely denied, because the patient, although incurably insane, continues to keep his voluntary status simply because the need for certification never arises.
I think that the point is quite clearly and cogently made in those observations of the Royal Commission. The Commission therefore thought that treatment as a voluntary patient should be recognised


as constituting care and treatment whether under the mental treatment Acts or in an institution outside these Acts. I think it is generally accepted that this brings the spirit of the law up to date to meet a more modern approach to mental sickness. In a word, certification is no longer to be the criterion. Accordingly, the Royal Commission recommended that care and treatment in any hospital or other institution in England. Scotland, Northern Ireland, the Isle of Man or the Channel Isles should be deemed care and treatment for the purpose of divorce proceedings on grounds of insanity That is provided in Clause 1 (1, a) of the Bill.
I should add, in parentheses, that this alludes only to treatment for mental illness. Were a patient admitted for some physical ailment and were he subsequently to suffer mental disorder, the period would not begin from the beginning of the treatment for the physical disorder but only from the beginning of the treatment for mental disorder. Moreover, this provision covers only treatment in hospitals and institutions in any sense recognised by public authorities. It would not cover the treatment of a single person in the charge of a doctor, a matron or some other such person. That would clearly be outside the scope of the Royal Commission's careful recommendation.
Given this slightly more comprehensive provision, the Royal Commission thought that hardship could well arise in the case of a person whose spouse had to receive care and treatment overseas. The Commission recommended the inclusion of institutions overseas roughly equivalent with the provisions which they laid down, and they indicated that it would be necessary and incumbent upon the petitioning spouse to show that the general standards in the country overseas were substantially the same as the conditions here. That is provided in Clause 1 (1, b).
The Royal Commission also thought—this is referred to in paragraph 201 of its Report—that a break of 28 days or less should not be regarded as interrupting a continuous period of care and treatment. This is met in Clause 1 (3).
What has been omitted from the Bill is the Royal Commission's recommenda-

tion that a person is regarded as receiving care and treatment as long as his name is on the current records of the hospital. In the provisions here, that appears to be unnecessary. If such persons are detained in pursuance of an order and allowed out, under the existing law that is not breaking continuity. If they are being or have been treated as voluntary patients and recover sufficiently to go home, the practice is to discharge them from the hospital, and their names will automatically be taken off the books.
There remains one other matter under this heading to which the Royal Commission gave attention. As the law now exists, the spouse of a person serving in Her Majesty's Forces can be at a disadvantage compared with the spouse of a civilian. The short point is that at present a wife whose husband is in the Services and who is petitioning for divorce on grounds of her husband's insanity cannot rely on any period during which he has been receiving care and treatment in a military or naval hospital. Only care and treatment pursuant to an order or warrant under the Army Act falls within Section 1 (2) of the Matrimonial Causes Act, and such an order is not issued until the man is about to be transferred to a civilian hospital. Clause 1 (2) provides that a certificate from the Admiralty or the Secretary of State shall henceforth be conclusive evidence of the facts certified, and this will mean that mental treatment in a military hospital will qualify under Clause 1 (1, a).
Finally, we come to Clause 2, which is on a rather different point. As the law stands, under the Act of 1950, a husband or wife may petition for divorce on grounds that the other party to the marriage has deserted the petitioner without due cause for a period of at least three years immediately before the presentation of the petition, but the petitioner must prove not only that the respondent deserted for at least three years before the presentation of the petition but also that during the whole of that time he or she retained the intention to desert.
It will be seen that if the spouse becomes insane after desertion, he or she may be incapable of retaining such an intention and that, therefore, as the law at present stands, the petition will fail.


The Royal Commission discussed this in paragraph 260 of the Report, which reads:
In our opinion, in such cases it would be reasonable that desertion should be deemed not to have been interrupted by the insanity of the deserting spouse if it appears to the court that the desertion would probably have continued if he had not become insane. We recommend accordingly.
Clause 2 of the Bill provides for that.
It remains only to say that, as the Royal Commission recommended, the provisions of this Bill will apply to Scotland as well as to England. I hope that the House will perceive that its provisions fall almost entirely—I think I could say entirely—in line with the recommendations of the Royal Commission. One might perhaps add that it incorporates what is probably amongst the least controversial of the recommendations. It deals with a ground of divorce which must arouse the greatest compassion, irrespective of the views anybody may have on the subject. In no way would the Bill's provisions loosen the bonds of marriage. On the contrary, they do, perhaps, untie one or two small knots which cause additional suffering and additional hardship. That is why I commend the Bill to the House. I hope the House will agree to give it a Second Reading.

1.30 p.m.

Mrs. Eirene White: I should like, briefly, to support the Motion proposed by the hon. Member for Ashford (Mr. Deedes), who has most clearly and lucidly described the purpose of this Bill.
The purpose of the Bill is a narrow one, and deals only with one aspect of the subject. There are other matters concerned with persons of unsound mind or with mental defectives which were referred to by the Royal Commission that might possibly have been included in legislation concerning, for instance, cruelty, but the hon. Gentleman has, I think wisely in the circumstances, decided to confine his Bill to one relatively narrow matter; and that is really just to bring into line with modern treatment and modern thought the provisions of our existing matrimonial legislation.
The number of persons concerned is very small. I have been looking up the statistics, and find that in 1956, out of 27,753 petitions presented in England and

Wales only 222 were based on this ground. In Scotland, the figure is also very small. Out of about 2,000 petitions presented annually, only about 20 are based on this ground. It will be seen that in both England and Scotland, the proportion is very small. That does not, of course, make the individual case any less distressing, and I am sure that it is the wish of the House to do anything we can to relieve the position of spouses who are, at present, placed in peculiarly difficult circumstances.
The Royal Commission points out that some representations were made that the period of five years might have been shortened. The Commission rejects that, I think rightly, because it says that with this ground of divorce the most stringent safeguards should be taken for the benefit of the person being divorced. I think that that is absolutely right; that in this type of case, one should not contemplate shortening the period.
The Commission also says, very rightly, that in respect of a comparatively new ground of divorce as this is—it has only existed since 1937 in this country, and since 1938 in Scotland—it is undesirable that there should be any difference between the law in the two countries. One of the purposes of the Bill is to put this ground on an equivalent footing as between the two countries, though in many respects the matrimonial law of Scotland is much more sensible than that of England and Wales.
I do not think that anybody is likely to take exception, on medical grounds, to the proposals in this Bill. While doctors incline to disagree, as do lawyers, the consensus of opinion on this matter is that modern methods of treatment should be encouraged, and the law brought into line with them. I have looked also at the Report of the Royal Commission on Mental Illness and Mental Deficiency. That indicates that, having read the Report of the Royal Commission on Marriage and Divorce, the more recent Commission is in agreement with the other in this recommendation.
It makes one slight caveat. I hope that we are on strong ground in this Measure as drafted, because the Royal Commission on Mental Illness and Mental Deficiency says:
We see no difficulty, from the point of view of our own recommendations, in the new


wording proposed by the Royal Commission—
that is, the Royal Commission on Marriage and Divorce:
except that it is not quite clear whether it would cover a period of residence in, for example, an after-care home which might not provide 'treatment' in a strict sense but which might care for patients who are still 'of unsound mind' and are unfit to return to their homes but are not expected to benefit from further treatment in hospital. We suggest that 'care' should always be mentioned as well as 'treatment' in this context.
I assume that the draftsmen have looked at that, and are satisfied that this Measure, as now drafted, covers that point.
One very important practical matter, of course, is provided for here, and that is the practice, in the modern treatment of mental illness, that patients should, usually for fairly short periods, from time to time be allowed to return to their own homes on trial, although still under treatment from the hospital. I understand that, in the past, doubts have been expressed in the courts as to whether or not this was to be regarded as breaking continuity. By this Bill, it is to be understood that it is not a break in continuity, as long as it is done at the direction of the institution from which the patient is receiving treatment.
Some members of the British Medical Association who gave evidence before the Royal Commission on Marriage and Divorce pointed out that unless something was done to meet this situation the present provisions of the law would penalise the faithful spouse who does her best for the patient—that is to say, who is anxious to have the patient home, and to do anything that can possibly be done in the hope that she can make a success of the treatment—whereas it encourages the spouse who is indifferent, and who possibly contemplated divorce from the beginning of the illness—the spouse not willing to receive the ill person home for trial periods. It is only right that we should remedy that situation.
One point mentioned by the hon. Gentleman is of great importance to some people; the position of wives of Service men who become insane. I will not go into any detail, because I believe that the hon. Lady the Member for Devonport (Miss Vickers) wishes to say something about it. It is important, however, to a small number of persons who have been

peculiarly hardly done by under the existing provisions of the law.
On the other matter of principle dealt with in the Bill, that is to say, the provision about desertion, I hesitate to speak in legal terms, as I am not a lawyer, but I gather that this is really a provision to give statutory effect to something already decided, in principle, in a case which reached the House of Lords. That decision applies to England and Wales. I am not certain whether a case has been heard in Scotland since the Royal Commission on Marriage and Divorce reported, but at that time there seemed to be some doubt about this in Scottish law. In any case, the Bill should now clear up that position for both countries.
I hope very much that this Bill, short as it is, but important as it is for the few persons concerned, will receive the approbation of the House.

1.40 p.m.

Miss Joan Vickers: I congratulate my hon. Friend the Member for Ashford (Mr. Deedes) upon introducing this small but very important Measure. I should like also to congratulate the hon. Lady the Member for Flint, East (Mrs. White) because, as we know, had she been fortunate enough to have drawn a place in the Ballot she would have introduced a similar Measure which perhaps would have been even more comprehensive. We appreciate that it is probably through her efforts that this Bill has been introduced today, for she has worked for many years on this subject.
Having said that I welcome the Bill, I should like to take up one or two points mentioned by my hon. Friend the Member for Ashford. He said that we do not want to loosen the bonds of any real marriage, and we are very anxious that this Bill should not be taken as dome so. I should like to quote from the Gorell Commission, which says that the marriage relationship has ended as if the unfortunate insane person were dead and the objects for which the marriage was formed have become wholly frustrated. We can fairly say that in the cases with which we are now concerned the marriage has ended, and, therefore, we are simply making conditions happier for the spouse who is not afflicted. We are not in any way loosening the bonds of a real marriage.
I should like to refer to a matter that was raised by the hon. Member for Flint, East concerning medical practitioners. One has heard many people say that in view of the medical knowledge of mental disease that is gained each year there is perhaps some doubt about the need for such a Bill as this. However, I think it has been found in Scotland, which in many ways has better laws than England—and, indeed, it is said in page 57, paragraph 182, of the Royal Commission's Report—that the problem does not arise there because the fact that the patient has been under care and treatment for at least five years raises a presumption of incurability. We are only, therefore, coming into line with that practice which has worked so well in Scotland.
I want to raise two other points. One relates to Clause 1 (1, b), which says:
… as a resident in a hospital or other institution in any other country, being a hospital or institution in which his treament is comparable with the treatment provided …
as in the United Kingdom, the Isle of Man, or the Channel Islands. I should like to know how the Southern Irish would be affected. As we know, divorce is not recognised in that country. If anybody living in Eire wishes to get a divorce, he has to come to this country to do so. Can any arrangements be made to get the medical evidence relating to somebody who is in a mental institution in such a country as Eire?
There may be other countries which are similarly situated, but in England there are many citizens of Eire some of whom may have a spouse in an institution in that country. I would be very grateful to know whether this point has been safeguarded.
I am also interested in the application of this Bill to the Services which are mentioned in Clause 1 (2), which says:
For the purposes of the foregoing subsection a certificate by the Admiralty or a Secretary of State that a person was receiving treatment for mental illness during any period as a resident in any naval, military or air-force hospital under the direction of the Admiralty, the Army Council or the Air Council shall be conclusive evidence of the facts certified.
I understand from the mover of the Bill that Service men can be transferred to a civilian hospital. I should like to

draw attention to subsection (3), which contains the words:
… any interruption of such a period for twenty-eight days or less shall be disregarded
in determining whether any period of care and treatment has been continuous. In many cases these persons may be serving overseas. They may be in a military or naval hospital. I should like to know whether 28 days can be considered a sufficient period if, for instance, a man has to be transferred back from serving in Malaya and has to come by sea, it may or may not be in a hospital ship. Will that constitute a sufficient period to allow such people to be brought back so that they may benefit from this proposal?
I should also like to draw attention to the fact that the Yarmouth Naval Hospital has now been transferred. This is the hospital to which naval patients were sent under the Matrimonial Causes Act, 1950. I should like to know whether other hospitals under naval jurisdiction will be considered to qualify in the same way as did the naval hospital at Yarmouth.
I welcome the Bill and I hope that it will be possible to clarify in Committee the points which I have raised. I trust that it will receive a Second Reading.

1.46 p.m.

Mr. R. W. Sorensen: I warmly welcome the Bill and I heartily congratulate the hon. Member for Ashford (Mr. Deedes), and the hon. Lady the Member for Flint, East (Mrs. White) on their exposition of the Bill, small though it is.
This small Bill deals with a very small proportion of our people, but it is to the credit of this country and of this House that we are prepared to devote attention to a minority of our population. How that fits in with the concept of the greatest good for the greatest number we can discuss at another time, but certainly if we were not prepared to address ourselves to the needs of a very small section of our community we should be involved in a steady drift towards a totalitarian conception of human interests.
I am glad to support the Bill today for several reasons; first, because I participated in the debates on the Matrimonial Causes Bill in 1937, and I have no reason at all to regret my action on that occasion. I have seen that Measure passed into


law, and although at first there was considerable unwarranted apprehension lest this Bill should lead to an increase in divorce, nevertheless I feel that that Bill has brought relief to many thousands of human beings who otherwise would not have secured it. This led to the regularisation of human relationships which otherwise would not have been possible, and although defects have been exposed in the course of time, I am glad to feel that some of those have been met by subsequent legislation.
I am also interested in all these Measures because, for twenty-one years, I had experience of mental hospital administration in one of the two great mental hospitals in the County of Essex. I am quite convinced that legislation on these lines is, taking everything as a whole, to the benefit of all concerned.
Before passing on to one or two observations on the Measure, I should like to say that I consider that, with all due safeguards, if in fact cohabitation is impossible in what is legally called marriage then the marriage has ceased to exist. One of the three reasons for marriage elaborated in the marriage service in the Anglican Prayer Book is precisely that to which I have alluded—in other words, cohabitation. If cohabitation cannot exist, it seems to me that part of the marriage at least has ceased. There is no reason why affection should not remain even if the spouses are divorced, but one of the primary objects of marriage has not been fulfilled and, therefore, the marriage ceremony is virtually nullified.
Obviously previous legislation intended to deal with precisely those cases has unfortunately, through some legal defect, failed to include certain cases. In other words, the intention and object of legislation heretofore has been frustrated in a few hundred cases. All the Bill seeks to do is to remove that frustration of the intention of previous Acts of Parliament, in other wrds, to make it possible for those seeking divorce to do what previous Acts intended they should be able to do.
I shall be glad if the hon. Member for Ashford will tell us whether the Bill covers cases where, for instance, individual patients themselves voluntarily choose to withdraw from hospital, securing their own discharge. One welcomes, of

course, the diminution in the number of certified cases, but that diminution means that many more persons are now voluntary patients who can secure their own discharge at almost any time. That being so, it is surely possible for a patient to discharge himself or herself and thus not be within the provisions of the Bill. No action could be taken precisely because the patient would no longer be receiving mental treatment. It may well be that he or she would need it; very often, patients voluntarily seek discharge from hospital when still needing treatment.
Does the Bill cover that category of patients unwisely withdrawing from hospital, securing their discharge, and then, apparently, no longer receiving the continuous mental treatment to which the Bill refers? There are circumstances, I suggest, in which interested parties with ulterior motives could persuade a patient to seek discharge. In that case, the object of this Bill is also frustrated, as far as I can see, and I should be very glad to know before the debate ends whether the Bill can comprehend or include that class of case. If not, then it seems to me that yet another Bill will at sonic time be required in order to deal with that further small minority.
Further, how is it to be determined that a patient has been in a hospital or institution in another country and has been receiving treatment comparable with the treatment provided in a hospital in this country? Who is to determine that? Is some kind of certificate to be secured from the person in charge of the hospital or institution overseas, or shall some authority in this country determine whether the treatment is comparable? There is nothing in the Bill to indicate exactly what the position is. This question is linked in some measure with the observations of the hon. Lady the Member for Devonport (Miss Vickers), and I should like to hear about it from the hon. Gentleman whose Bill this is.
I join with all other hon. Members in emphasising our firm desire that everything shall be done to safeguard the interests of the patient. Where there is the slightest chance of recovery after mental treatment, I trust that everything will be done to secure either prolongation of the treatment on the one hand or suspension of any action for divorce on the other. There are within our experience cases not only of tragedy, as we know full


well, but also of happy reunion after a lapse of time. There are, of course, rare occasions when patients thought to be incurable do recover, and there are those who say, on that ground alone, that a Bill of this kind is dangerous. I cannot agree. I believe those cases to be very rare indeed and, on the other hand, that the number of those who might suffer permanent and crippling disability is very much greater.
There must be no erosion of the institution of marriage. We want to encourage spouses to live together in happiness and well being. We want to do all we can to secure the return of those who have been ill physically or mentally, but where there is, in fact, reason for saying that there is prolonged mental illness which not only prevents cohabitation but should prevent cohabitation, then it seems to me the intention of previous legislation which has been frustrated should now be fulfilled. In my view, the excellent Bill now before us, which I have the honour and pleasure to support, is likely to achieve that object.

1.57 p.m.

Mr. Charles Doughty: I support this small Bill in the knowledge that it affects only a small number of people. The original Act of 1950, the Matrimonial Causes Act of that year, covered persons who were married, and who were incurably of unsound mind, being detained in the appropriate institution. It is very important to remember that, in passing this Bill, we are not striking at the roots of the 1950 Act. The person who is to be divorced, if I may use that expression, still must be shown to be incurably of unsound mind.
Unless the petitioner can satisfy the court, presumably by medical evidence, that the respondent is incurably of unsound mind, he or she will fail to secure a divorce either under the 1950 Act or under the present Bill if it becomes an Act. That is as it should be. As the hon. Member for Leyton (Mr. Sorensen) told us, there are many cases of cure, and there are many cases which have been given up and then shown to be curable. It would be wrong if a person found himself cured and then, at the same time, found that he had been caught by the Act. We are not changing

the Act in that respect, and it is right that we should not.
What the Bill does is to relieve hardship under the Act of 1950, which, in Section 1, refers to a person being detained under an order. If a person is detained under a certification order as there referred to, the law at present provides that, provided that person is incurably of unsound mind, the spouse can petition for divorce. Recently, however, as we know from reports we have received from mental hospitals—indeed, it has been mentioned in debate in the House—there is an increasing tendency for patients voluntarily to enter hospital. Such voluntary patients can discharge themselves if they so desire. Of course, in appropriate cases, it may well be that the hospital authorities, with knowledge of the patient's condition and history, might obtain an order. It is to cover that class of person that the Bill is being introduced. Though the Bill will affect but few cases, it is none the less a good Bill and I congratulate my hon. Friend upon bringing it before the House to fulfil that limited purpose. Indeed, we should encourage people to become voluntary patients where possible, and to avoid certification.
The hon. Member for Leyton asked my hon. Friend the Member for Ashford (Mr. Deedes) what the effect of the Bill was upon patients voluntarily discharging themselves. I am not the promoter of the Bill, but I would venture the opinion, which I hope will be accepted as right—we have my hon. and learned Friend the Solicitor-General with us—that, when a person discharges himself, it is quite clear that he is not resident in a hospital or institution for five years and, therefore, if he does not come within the subsection providing for an interruption of 28 days or less, he could not be shown to be within the provisions of the Bill. There would, therefore, be no ground for the spouse petitioning for a divorce.
It would be difficult to say, of a person who is well after discharging himself and who remains in the world outside, that he was incurably of unsound mind. If such a person showed himself to be of unsound mind, he might well find himself back in the same or some other institution.

Mr. Sorensen: Does the hon. and learned Gentleman appreciate that there are thousands of people of unsound mind now who are not in mental hospitals?


They may not be chronically of unsound mind, but they are certainly of unsound mind, and they voluntarily refuse to go into hospital in the same way as others voluntarily decide to do so.

Mr. Doughty: I appreciate that. It is, of course, always a difficult question to determine who is of unsound mind. With those persons who do not go into institutions, of course, we are not concerned today.
Though I give my support generally to the Bill, it does not necessarily follow that I agree with every single word of it. Quite frankly, I am not too happy about the provision for interrupted residence. If a person is well enough to interrupt residence he is, in some respect, at any rate, not incurably of unsound mind.
Perhaps the most difficult thing of all to decide about—and two hon. Members have already mentioned it—is the paragraph referring to a person receiving treatment for mental illness in a hospital in another country. In that case it has to be proved that the treatment in that other country was the same type of treatment as is given in mental hospitals in this country. I have not heard of any cases of people whose spouses are detained in mental institutions in other countries, and I think that it would be unwise to include this provision. I hope that, in Committee, it will be struck out.
Except by calling foreign as well as English mental specialists, how is a petitioner to satisfy the court that a person is detained in a place which provides treatment comparable with that given in mental hospitals in this country? It would be a great burden upon such a petitioner. No great hardship would be caused by striking it out, and it is an innovation which should not be brought in.
Clause 2 deals with the entirely different question of continuing desertion. I am not going to take up time by asking why the promoter uses the word "likely" whereas the Royal Commission uses the word "probably." These words have different meanings in the courts. There is an argument that the court already has this power with regard to desertion, where a person in the course of the three years concerned becomes mentally unsound. The Clause probably clarifies the law, although it puts a great burden upon the courts, which will have to decide the

very difficult question of what might have happened if some one had not become of unsound mind.
It may be that within one month of marriage a person deserts his or her spouse and that nearly three years later the court is asked to decide what might have happened if the person had not become of unsound mind. I think that that difficult problem should be left to be decided by the very capable judges who deal with these very difficult cases.
I end as I began, by saying that I hope that the House will give this limited Measure its support. Any hon. Member can reserve his right to propose Amendments in Committee if he or she thinks fit, but the Bill should help a small number of our fellow-citizens who, while suffering great hardship, cannot bring themselves within the strict terms of the 1950 Act. The Bill may serve to bring them relief, and in that case we should be thankful that we have days for Private Members' Bills so that we can introduce this type of Bill to remedy a small anomaly which the Government might not have time to do.

2.3 p.m.

Mr. Marcus Lipton: It is a refreshing experience to hear the hon. and learned Member for Surrey, East (Mr. Doughty) speaking in favour of law reform on a Friday. It is an unusual rôle for him to play, and if anybody had doubts about the merits of the Bill the fact that the hon. and learned Member has spoken in favour of it should be enough to dispose of them.
I hope that the promoter will think very carefully before he accedes to the request to strike out of his Bill the provision referring to treatment in another country. As a result of the war, there has been a greater degree of upheaval and a greater degree of the breaking of family ties in the last few years than perhaps ever before in history. Cases may well arise where one spouse is found living in one country and the other in another country, in circumstances over which neither has any control. One of those persons may have to receive mental treatment in a foreign land. There is by now, between most civilised countries, a sufficiently uniform standard of mental treatment for it to be acceptable in any court in this country which has to decide a case of this kind.
There have been some cases of hardships arising as a result of the existing state of the law. They may be few in number, but when they arise they are extremely agonising to the parties involved. If the Bill makes some contribution towards solving a few of the problems with which it is intended to deal, it will serve a most useful purpose.

2.5 p.m.

The Solicitor-General (Sir Harry Hylton-Foster): My hon. Friend's Bill has the support of hon. Members who have spoken, and all of one Royal Commission and a little of another. I wish to add Her Majesty's Government to the list of supporters. I should also like to congratulate my hon. Friend the Member for Ashford (Mr. Deedes) upon his good fortune in the Ballot and upon the way in which he has used it.
Some hon. Members have said that this Bill affects only a very few people. I am not sure that that is quite right. It is a Bill which removes injustices, and I regard the removal of injustices as something which affects every person in the country. Her Majesty's Government respectfully offer their help in any matters relating to the Committee points raised by hon. Members.
The hon. Member for Leyton (Mr. Sorensen) addressed some questions to my hon. Friend the Member for Ashford, who introduced the Bill. Perhaps I can help by answering them to the best of my ability now. The first question was in relation to treatment, in a foreign hospital, which is comparable to that provided in a hospital here, as referred to in Clause 1 (1, b). It is for the court to decide, upon evidence called before it, whether or not such treatment is comparable.
It is obviously difficult to arrive at the right provision because, if the law takes a certain period of care and treatment as one of the yardsticks for the purposes of a divorce on the ground of incurable insanity—as the law does—we may do great harm to the spouse suffering from mental ill-health if we do not inquire what the treatment was, and ensure that the patient had all the medicine that could have been provided.
The position is easy enough to deal with if it occurs here, because we can

obtain direct evidence—which can be brought quickly before the court—to show what the treatment was. But that does not work where a patient is detained overseas. Owing to the wide variety in the standards of treatment of mental ill-health, we are faced with the difficulty either of running the risk that the petitioning spouse will get a divorce without establishing that care and treatment of a sufficiently high standard has been given, or, on the other hand, of putting the burden upon the petitioning spouse to prove that the care and treatment given is comparable.
It is very difficult to see how one could ensure in any other way that the mentally-ill spouse had secured the right standard of treatment. Paragraph 209 of the Royal Commission's recommendation was related to
standards which are substantially the same as those obtaining in respect of the care and treatment of patients suffering from mental illness in England or Scotland ….
The Bill puts a slightly less heavy burden upon the petitioner, because, as compared with the recommendation, it refers to
treatment … comparable with the treatment provided.
That is presumably because it was felt that the recommendation of the Royal Commission placed too heavy a burden upon the petitioner.
I was puzzled to hear my hon. and learned Friend for Surrey, East (Mr. Doughty) talking about hardship in this context. I imagine that if a person had the terrible misfortune to find himself still wedded to a spouse who was incurably insane—and that is a very dreadful situation for anybody—he would regard it as a great deal less of a hardship to have imposed upon him the burden of proving that his spouse in a foreign country was receiving treatment comparable with that given in this country than to be deprived altogether of being able to get his divorce in those circumstances.

Mr. Doughty: I had in mind the obtaining of satisfactory evidence in this country of treatment received in a foreign mental institution or hospital to meet the requirement that such treatment shall be comparable. That is the practical difficulty to which I was referring.

The Solicitor-General: My hon. and learned Friend will understand that there must be a practical difficulty, unless we can think of another way of getting over the legislative difficulty which is involved. The Royal Commission did not think it an insuperable practical difficulty, and I do not think that the House should think it an insuperable practical difficulty. There may be cases when it is extremely awkward, but modern communications become better every day and we want someone reliable to describe to the court the standard of care and treatment in the institution in question.
May I now turn to the question raised by the hon. Member for Leyton, which I might seek to answer? Manifestly, voluntary patients will from time to time release themselves. No doubt, in some cases, they may do so unwisely. If the voluntary patient, under the terms of this Bill, releases himself and is permitted to remain at freedom, as it were, for more than the 28 days contemplated as not constituting an interruption for the purposes of this Bill, he will have ceased to be liable to be divorced on the ground that he is incurably of unsound mind.
There, inherently, is the difficulty that if we treat as irrelevant the fact that a voluntary patient has secured his own release for a continuous period of more than 28 days before the five years are up, the standard required for the proof of facts to justify the breaking of the marriage tie will be dangerously lowered. The difficulty that the hon. and learned

Gentleman raises is a real one, but I cannot think of any possible way in which we can legislate out of the difficulty.

Mr. Sorensen: Would it not be possible to include in the Bill, by Amendment, a reference not to certification, but a statement by an appropriate competent medical authority that in its view the patient was still suffering from mental disorder and, therefore, could be included in the Bill?

The Solicitor-General: On the principle of the Clause in the Bill one takes an uninterrupted period of care and treatment as one of the standards by which one measures the liability of a patient to be divorced. If we chose to substitute a different standard it would represent a larger change in the law than the Bill contemplates. The House would be reluctant to explore those parts of our law until we reached the stage of legislating in consequence of the recommendations of the other Royal Commission in the whole sphere of certification.
I regret, this having been a matter of great interest, that I have been beguiled into saying more than I meant to say in offering the support of Her Majesty's Government to the Bill.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).

Orders of the Day — OPTICIANS BILL

Order for Second Reading read.

2.15 p.m.

Mr. Ronald Russell: I beg to move, That the Bill he now read a Second time.
I am very pleased to have the opportunity of sponsoring this Bill. I make it clear that I have no personal connection with the profession of opticians, except as a completely satisfied customer. I am sponsoring the Bill because I have been lucky in the Ballot, and I believe that it is a very worth while cause. I am very glad that the Bill is supported by the hon. Member for Manchester, Exchange (Mr. W. Griffiths), who is an optician by profession. I am also only too happy to have the support of others who have expert knowledge of this subject, like the hon. Member for Putney (Sir H. Linstead), and two former Ministers of Health, one former Parliamentary Secretary to the Ministry of Health and a member of the medical profession.
The objects of the Bill are to provide a recognised status for opticians by providing them with registration to promote a high standard of professional education and conduct among opticians and, in so doing, to protect the public against the activities of unqualified and untrained persons who pose as opticians. At present anyone may call himself an optician or practise as an optician even though he is completely unqualified. He may examine eyes or supply glasses without any training. If he does so he is not breaking any law. There are a number of "quacks" who do that. They are mostly itinerant quacks who call themselves opticians, purport to test eyes and supply glasses, which are often quite useless, at exhorbitant prices. There is evidence of the harm done by these persons, yet it is impossible to prevent it under the present law.
May I give one or two examples. The first is taken from the Sunday Pictorial of 10th November, 1957, which is the story of a quack operating from Sheffield who admitted that he had no qualifications and was not an optician under the National Health Service, but he had experimented on boys in the barrack room when he was in the Army and he had

dabbled in optics ever since. One of his customers was blind in one eye. He was supplied with spectacles by this quack. As a result, after examination by expert opticians, the spectacles were giving only 75 per cent. vision out of the good eye whilst it was claimed that the spectacles would help him to see out of the blind eye. This patient's wife also was supplied with glasses, which were completely out of focus. These two pairs of glasses cost £4 each. The couple were supplied under the National Health Service with correct glasses for about 30s. each. Clearly something ought to be done to stop quacks like that operating on people who are uninformed.
There was the case of the man in Essex who was charged with the theft of spectacles, with obtaining money by false pretences and obtaining credit by fraud. This man went round rural areas testing eyes and arranging for spectacles to be supplied or new lenses to be fitted in existing ones. These patients gave him money in advance and rarely received glasses. One man was very deaf and the quack told him that he needed nerve glasses which would automatically make his hearing clearer. He paid a cheque for £5 10s. but never received any glasses. I understand that there are no lenses which will help to cure him of his deafness in any way.
There are other examples I could quote, but I will not take up the time of the House. I have plenty of examples if any hon. Member is in doubt.
The history of the attempts to obtain registration for opticians goes back over 60 years to the time when the British Optical Association was formed. The last time a Bill was introduced into this House was on 13th May, 1927, when, by coincidence, a namesake of mine, Mr. West Russell, who was the hon. Member for Tynemouth for many years, moved the Second Reading of what was called the Optical Practitioners Registration Bill. That Bill was not given a Second Reading because it was already being considered by a Departmental Committee. On that occasion the then Parliamentary Secretary to the Ministry of Health, the late Sir Kingsley Wood, said:
… undoubtedly there is a case for something to be done …."—[OFFICIAL REPORT, 13th May, 1927; Vol. 206, c. 841.]
He pointed out, though, that there was a difference of opinion as to the method


of approach. However, nothing has been done by legislation up to this very day.
This Bill originates from the Crook Report, and very largely follows it. I would remind the House that the Crook Report was the result of an inter-Departmental committee set up in 1949 by the then Minister of Health, the right hon. Member for Ebbw Vale (Mr. Bevan):
To advise, on the assumption that it would he to the public interest that provision should be made by legislation for the registration of opticians, how registration could best be carried out and what qualifications should be required as a condition of registration.
That Committee produced a unanimous Report in 1952.
Since then, there have been a number of discussions between the Ministry of Health and representatives of all sections of the profession. I am not going into those in detail. I am sure that the Parliamentary Secretary will wish to do so when he speaks in this debate.
This Bill is based largely on the Crook Report. Since it was published my cosponsors and I have received representations from the dispensing opticians that the Bill departed from the Crook Report, and also from the Ophthalmic Group Committee of the British Medical Association. Following discussions we have had with some of those representatives we have agreed to seek to amend the Bill in certain respects when it goes to Committee, if it is given a Second Reading. I think it may be convenient if I outline the proposed amendments as I try to explain the Bill.
Clause 1 sets up a General Optical Council, and thus follows a familiar practice into which I will not go in detail. Its constitution is set out in the Schedule to the Bill. The only difference between the composition of the General Optical Council as suggested in the Crook Report and the composition as laid down in the Schedule is that the Council has two more members; it is to have 23 instead of 21. The Ophthalmic Group Committee of the British Medical Association considers it is under-represented in that constitution. That is a matter which, of course, could be discussed in Committee.
Clause 2 as at present drafted lays down that the General Optical Council

shall establish two registers of opticians; by subsection (1, a) a register of ophthalmic opticians qualified to test sight and to fit and supply spectacles, and by subsection (1, b) a register of dispensing opticians qualified to fit and supply spectacles whether or not they are also qualified to test sight. By subsection (2) the Council is empowered, if it thinks fit, to maintain a separate part of the register of ophthalmic opticians in which those engaged only in sight testing can be registered. There are, I understand, about 8,100 opticians in Great Britain, of whom 7,300 are ophthalmic opticians and 800 dispensing opticians.
I understand that the dispensing opticians, and, to a certain extent, medical men connected with optics, want to see eventually only two kinds of opticians, those testing sight and those who fit and supply spectacles, and they want eventually to abolish the state of affairs in which opticians do both. Of course, there is controversy in the profession about that. They hope eventually to close down entirely the first register, the one under subsection (1, a). They do not like this Clause as drafted.
We have agreed, with the support of ophthalmic opticians, to meet this objection, and I propose, therefore, to table an Amendment in Committee which will make it obligatory for the General Optical Council to establish three registers from the outset. In other words, what is now subsection (2) will, with, perhaps, suitable alterations to bring it within the wording of subsection (1, a and b), become subsection (1, c). I suggest, if that happens, the first register, to distinguish the different kinds of opticians should, perhaps, be called the "register of ophthalmic dispensing opticians" which will leave the other two, the one of ophthalmic opticians and the one of dispensing opticians.
The Bill does not lay down any procedure for eventually closing the first register even to new entrants, and the Crook Committee did not do so either. In paragraph 66 of the Crook Committee's Report, it is said:
… we therefore recommend that the first register should not he closed until the proposed General Optical Council are satisfied that the development which we have forecast has reached a stage which will justify the maintenance of the second and third registers only ….


It goes on to say:
The public interest would be a main consideration in this connection.
Paragraph 69 says:
It will be for the General Optical Council to judge when this stage of evolution of the ophthalmic optical profession has been reached.
I ask the House to note that it says merely "to judge". It does not say how it should be done or who should take any action. I cannot imagine this House would agree that the power to close down this register should be given to the General Optical Council or to anybody outside this House, still less to fix a date now when this register should be closed, because doing that may affect the livelihood of many people. We have to watch that very closely. It would also affect the chosen careers of new entrants. We have therefore, to be very careful about how we do this, and nothing is laid down in the Bill about it.
Clause 3 deals with the qualifications for being registered. It has been represented to us that subsection (3) of the Clause as at present drafted would possibly exclude correspondence courses or apprenticeship courses and thus debar the children of parents of limited means from managing to obtain qualification. There is no intention to do that, and, therefore, if that is not clear I would propose, if necessary, to table an Amendment in Committee to make that change.

Mr. W. R. Williams: While the hon. Gentleman is talking about possible Amendments in Committee, I wonder whether he will be good enough to look at line 42, on page 2, in subsection (4) of Clause 3, where are the words:
and is of good character".
That seems to me to be a rather nebulous form of words. Perhaps the hon. Gentleman will say something about them, or agree that we may in a rather more specific form of words when we are in Committee on the Bill.

Mr. Russell: That is a matter which could be taken up in Committee.
I come to Clause 4. We have been told that subsection (2, a) would exclude ophthalmologists who test sight for dispensing opticians. There is no intention to do that, and I shall be only too happy

to table an Amendment in Committee. Probably the best way of doing it would be to insert the words "registered medical practitioner" in line 28, on page 3, after the words "registered ophthalmic optician" in line 27. There was no intention of excluding those people from the Bill.
Clauses 5 and 6 cover training institutions and the candidates' examinations and qualifications. Clauses 7 and 8 deal with supplementary provisions relating to registers and their publication. Clauses 9 to 16 deal with the proposed Disciplinary Committee to be formed by the Council and with various disciplinary matters. Clause 17 deals with the proposed Education Committee, and Clause 18 with the proposed Companies Committee. Clause 19 empowers the Council to set up other committees if it thinks fit.
Clause 20 lays down penalties for people who pretend to be registered. It will prohibit any unregistered person from calling himself an ophthalmic optician, a dispensing optician, a registered optician, or an enrolled optician. It does not prevent anyone calling himself an optician, without prefix or suffix. Nor does it prevent the testing of sight or the supplying of glasses by other than registered opticians. I believe there is a general feeling that there should be a prohibition of that kind, but if we include that we shall have to exclude things like sunglasses or glasses which merely magnify. I do not think anyone would wish to have that prohibition.
We are really going back to paragraphs 87 and 88 of the Crook Report, which states:
We feel, however, that in registering opticians it would be desirable to legislate against unregistered persons who claim to prescribe or who supply spectacles for use be the public, and also against the indiscriminate sale of spectacles or spectacle lenses by chain stores.
That may be done by some such phraseology as is used in Section 1 of the Dentists Act, 1921.

Mr. Frank Beswick: It has always been the wish of everyone concerned to eliminate this undesirable class of person from purveying spectacles, but the difficulty has always been definition. It has always been argued that it is impossible to define the spectacles referred


to and still exclude sunglasses. Is the hon. Member sure that the information which he now has at his disposal would enable him to solve a problem which has defeated the Ministry?

Mr. Russell: I cannot say at the moment that I shall be able to draft a Clause of that kind, but I am sure that with the help of the Department something could be drafted to include what we want to include without having to cover sunglasses or simple magnifying glasses, which it could not possibly do anybody any harm to buy. At any rate that is something which can be looked into in Committee, and I would propose submitting an Amendment on those lines.
I have had anxiety expressed by one or two of my hon. Friends, particularly the hon. Lady the Member for Hornsey (Lady Gammans), that the prohibitions laid down in Clause 20 might take away the livelihood of long-established opticians who are not qualified in any way by examination but who have been carrying out perfectly good practice for many years. I understand that such a prohibition would not do that, because examination is not necessarily the only qualification. Therefore, there is no danger of these people's livelihoods being taken away from them. That is some thing which nobody in the House would want to do.
Clause 22 refers to advertising and publicity, and it has been suggested that subsection (1, a) might prohibit dispensing opticians from advertising. We do not want to do that, and again am ready to move or to accept an Amendment in Committee to make this absolutely clear. I gather that subsection (1, b) might threaten the use of the name "medical eye centre" which has become long-established all over the country. It is not the intention of the Bill to do that. The wording, therefore, is something which we should be only too glad to put right in Committee. There are a few other criticisms from members of the medical profession whom I have already seen. We should be only too glad to consider all their criticisms and objections in Committee if the Bill is given a Second Reading. It would be an ideal way of dealing with the objections.
I hope that I have said enough to convince the House of the need for the

Bill. I believe that there is general agreement on its main principles, and I have already shown how, by Amendments in Committee, we propose to meet objections which have already been brought to our notice. I hope that when the Parliamentary Secretary intervenes he will feel able to support the Bill and the Amendments which we shall make.
I believe that this is a very deserving Measure in the interests of both the profession and the public. This is a very old calling, which goes back to about the thirteenth century when Roger Bacon first used a single lens, or crystal, to improve vision, and it is a profession worthy of the support of the House. There has been a long enough struggle to obtain registration for the profession. I believe that we now have a chance of ending this battle once and for all by giving the Bill a Second Reading and by being willing to discuss it very thoroughly and amend it in Committee.

2.35 p.m.

Mr. W. Griffiths: I should like to congratulate the hon. Member for Wembley, South (Mr. Russell) on his good fortune in the Ballot, on his courage in selecting a Measure of this kind and of such considerable importance, and on the way in which he has presented it to us today.
I support the Motion that the House should give the Bill a Second Reading. In doing so, I am fortified by the knowledge that among the names on the Bill are those of my right hon. Friend the Member for Middlesbrough, East (Mr. Marquand), a former Minister of Health, my hon. Friend the Member for Newcastle-upon-Tyne, East (Mr. Blenkinsop), a former Parliamentary Secretary to the Ministry of Health, as well as my hon. Friend the Member for Loughborough (Mr. Cronin), who is a distinguished member of the medical profession. The Bill is also supported by a very great number of my hon. Friends.
As is customary in the House, I have, first, to declare my interest. As is already well-known to many of my colleagues, I am by profession a consulting ophthalmic optician, but I hasten to add that, like many other men and women who come to the House of Commons, I am primarily here because I convinced a sufficient number of the electors in the Exchange Division of Manchester to send


me here, and not because of my profession.
My view, like that of most other hon. Members, is that the work which hon. Members do outside the House of Commons is only of interest to the House in the specialised knowledge that it can bring to the House and the technical information that hon. Members can deploy. But the actions of all of us are always conditioned in these matters by what is in the public interest. That is why I support the Bill, because I believe that it is primarily in the public interest, as I hope to show in my speech.
It is my view that, if not the whole of the House, then, certainly, the overwhelming majority of Members are not concerned primarily about raising the status of any professional body as such. When a Bill of this kind faces them, hon. Members are concerned that in agreeing to raise the status of a profession they are, at the same time, taking part in an operation which is compatible with their conception of what is in the public interest. I believe that that consideration of what is in the public interest is foremost in the minds of those who are sponsors of the Bill.
I know that my colleagues have been the recipients, during the past few weeks, of literature from various professional bodies urging courses of action upon them which are in conflict. And, of course, hon. Members find it somewhat difficult to distinguish between these various groups and to understand what are their functions. May I follow up what has been already said by the hon. Member for Wembley, South? He told the House a few minutes ago that the number of opticians in Great Britain is about 8,100. Of these, about 7,300, or 90 per cent. of the total, are ophthalmic opticians. About 800 are dispensing opticians.
As to their functions, the 7,300 are employed upon the testing of sight and the provision of spectacles, whereas the job of the 800 dispensing opticians, in general terms, is the supply of optical appliances on prescriptions provided either by an ophthalmic medical practitioner, or by a consulting ophthalmic optician. Their job is purely the measurement of faces and the technique of attending, as it were, to the cosmetic consequences of the pre-

scription of the ophthalmologist or the ophthalmic optician.
Ninety per cent.—the 7,300 ophthalmic opticians—are wholeheartedly in support of the Bill and they have come, as the hon. Member for Wembley, South said, to an understanding with the dispensing opticians on the points of dissent. Perhaps I should say that, since the National Health Service was instituted, in 1948, the astonishing figure of 40 million of our fellow countrymen, so I was informed the other day, have had their eyes examined under the National Health Service. In about ten years several people will have attended three or four times for consultation, but of that 40 million, 80 per cent. in England and Wales and 92 per cent. in Scotland were examined by ophthalmic opticians.
I think that it is true to say that in this period—it is on the record in the Minister of Health's Report and in the observations made by Executive Councils—the ophthalmic opticians, who have done the majority of the work in the supplementary eye service, have had the lowest record of complaints in any part of the Health Service. The work of the ophthalmic opticians was commented upon in the Guillebaud Committee's Report, which is the only detailed examination of the whole of the structure and operation of the Health Service that we have up to date. The Guillebaud Committee went out of its way to commend the way in which ophthalmic opticians have functioned under the Health Service. I think that they have a rather remarkable record. That is not to say that, like all professions, they have not got the "dirty dozen," but I think that they have a remarkable record when one considers that the men and women operating this service had no statutory recognition and were entering into a contractual relation-ship with the State without the advantages of a long tradition of State registration which so many others had.
I am sure that hon. Members were surprised to hear of what the hon. Member for Wembley, South correctly informed us, namely, that unlike the majority of Commonwealth countries or the U.S.A., any person in this country may examine eyes and prescribe glasses and in doing so does not break the law.


The position under the Health Service is quite different. Here, only opticians holding the necessary qualifications in accordance with the statutory regulations are recognised. Nevertheless, despite this measure of, as it were, State registration, it is still true that the chain stores continue to flourish, and that, at the periphery of the service, the quacks flourish.
Generally, as the hon. Member for Wembley, South told the House quite clearly, they batten on the poor and the elderly. To some extent the growth of sales in the chain stores and the growth of the operation of what I call the periphery quacks has increased since a financial barrier was placed between the patient and skilled service available to him by the institution of charges on that section of the Health Service in 1951.
I shall not give any further examples of the quacks' behaviour because I think that the House has heard sufficient on this point front the hon. Member from Wembley, South. I would, however, say one thing about the chain stores. I think that it was Lord Crook, the Chairman of the Interdepartmental Committee set up by my right hon. Friend the Member for Ebbw Vale (Mr. Bevan), in 1949, who recorded that he presented himself at a chain store and asked for a pair of spectacles. A girl assistant provided him with a pair marked No. 10. He returned to the same store two hours later and saw another girl assistant who presented him with a pair marked No. 11. That is the alarming experience which the noble Lord underwent and it was of the greatest use to him in presiding over the Committee and agreeing with the rest of his colleagues that State registration was desirable.

Mr. Norman Pannell: Is it not a fact that the chain stores supply a chart with printing of various sizes against which are numbers which also appear on the spectacles, so that any person of normal intelligence can test his own eyesight?

Mr. Griffiths: Good heavens. I am not going to be drawn into argument. I cannot believe that the hon. Member is serious.

Mr. Pannell: I have a pair myself.

Mr. Griffiths: All I can say is that the whole of responsible opinion in the medical profession and in the ophthalmic profession would say that it is an undesirable practice.
I make one simple point. I ask any hon. Member in the House to shut one eye and then the other and he will probably find that he can see much better with one eye than with the other. It is a fact that spectacles supplied in the chain stores have the same pair of lenses for each eye, and I think that the layman can appreciate at once that that must be an undesirable practice. I must leave it there because other hon. Members want to speak.

Sir Eric Errington: May I ask the hon. Gentleman, who is a consulting ophthalmic optician, what are the arrangements under existing conditions for the training of those who wish to become ophthalmic opticians?

Mr. Griffiths: I will come to that in turn, or perhaps I had better answer it right away. The existing training is a very extensive one, running into three years' full-time training, which will soon be four years, with a very high educational standard which has been raised in recent years. It is all in the Crook Report, which the hon. Member has no doubt read, or will read for himself now.
To continue, it was the unanimous view of the Crook Committee that one of the consequences which would follow on a Bill of this kind would be the setting up of a body in the shape of a General Optical Council, one of the functions of which would be to see that there was institutional training on a level compatible with the seriousness of the professions responsibilities and also supervision of examinations, which, at the moment, are based on a high standard but one which is voluntarily accepted by the profession itself. I would have thought that a higher standard, one which is, nevertheless, a realistic standard, would have been far better left to a council such as is proposed in the Bill.
It is my view that such practices as the House has heard about from the hon. Member today, so far as chain stores are concerned, are wholly undesirable. I hope that if the Bill receives a Second Reading something will be written into the Bill during the Committee stage which


will make it illegal for chain stores to sell sighted spectacles while still permitting a legitimate trade in sun spectacles and hand readers. That is a matter which may be dealt with in Committee. All the professional bodies, those of the doctors, the ophthalmologists, dispensers and ourselves agree that that should be written into the Bill, if we gain the agreement of hon. Members that this Measure is desirable in the public interest.
I will deal briefly with the origins of the Bill and the setting up in 1949 of an Interdepartmental Committee under Lord Crook. I will not read the terms of reference of the Committee, about which hon. Members will know, or can read for themselves. It was assumed by my right hon. Friend the Member for Ebbw Vale, the then Minister of Health, that it was desirable that there should be registration in the public interest. The Committee was not set up to argue about whether registration should be granted, but to determine the proper methods to be employed to carry it into effect. The Committee represented all the professional bodies concerned including the medical profession. Among its members were a physicist, a physiologist, representatives of the teaching profession and the general public.
The Committee reported in 1952, after three years, and its Report was unanimous. I will not repeat the recommendations of the Committee, because the hon. Member for Wembley, South has already read them to the House. Since the Crook Committee reported, the Report has been considered seriously by the professions concerned and discussions have taken place with the Ministry of Health and the Department of Health for Scotland for two or three years. It was my understanding that agreement had been reached which would provide the basis for agreed legislation. We know that successive Ministers of Health have promised that a Bill would be introduced as a Government Measure as soon as Parliamentary time permitted. Only last week, the Minister of Health told my hon. Friend the Member for Newcastle-upon-Tyne. East that he would introduce a Bill as soon as Parliamentary time permitted.
Reference has been made to the objections to the Bill and hon. Members

will have received communications from the ophthalmic group of the British Medical Association and from the dispensing opticians. Without going into details, I will say that some whose names are on the Bill met representatives of the objectors during last week. I understand that those who support the Bill do not believe that any of the objections to the Measure cannot be reconciled during the Committee stage discussions, nor that they are of sufficient weight to justify withholding a Second Reading for the Bill. That is a clear undertaking given to the objectors, but I wish to refer to one objection about which it would appear at this stage to be difficult to reach agreement.
It is known that there is a proposal to set up three registers under this Bill: one for ophthalmic opticians with a dual function; one for dispensers; and a third for sight testing opticians who do not sell or provide spectacles. At present, that third register will be very small because there are few who fall into the third category; only those who work in eye hospitals, or on research work at the technical colleges. It is hoped that the numbers will grow as the status of the profession increases. Some who object to the Bill want a clause written into it that the General Optical Council, on a certain unspecified date in the future, and when the third register of non-dispensing sight testers becomes larger, will bring to an end the first register on which, at the moment, there will be 7,300 dual-purpose opticians.
Our view is that it is not good Parliamentary practice to set up a statutory body and say that it shall now be charged by Parliament on an unspecified date in the distant future, and under circumstances which cannot possibly be other than hypothetical, to end the livelihood of a section of the people. That has never been the practice of Parliament, as I am sure the hon. Member for Aberdeenshire, East (Sir R. Boothby) will confirm. We agree to the setting up of the third register, but we do not agree that Parliament should place an obligation on the Council to bring the first register to an end at some unspecified date in the future. It would be better to come back to Parliament at the right time, and, in the light of circumstances as they have developed, and ask for the abolition of the first register if a stage


has been reached in the status of the profession when sight testing can be divorced from supplying spectacles from the same source.
I hope that the House will give a Second Reading to this Bill, as its provisions are so obviously in the public interest in its design. We can assist in improving it during the discussions in Committee, and if what emerges is unsatisfactory hon. Members will have an opportunity to amend it further or to reject it completely when it reaches the Report stage. A Private Member's Bill has a long way to go, but I think that hon. Members will agree that in the public interest this Bill should at least have a Second Reading. The good points about it outweigh any minor reservations which hon. Members might have.

2.57 p.m.

Sir Robert Boothby: Placing my No. 11 spectacles upon my nose, I propose to make a few brief observations about this Measure and to say at the outset that I support the Motion for a Second Reading. I am fortified in this view by a message from no less a person than Lord Crook himself, who has told me that he is sure that, were the Measure given a Second Reading, any blemishes it has at present can be removed during the Committee stage discussions, and will be so removed.
At the same time, I am bound to point out that the Bill has not been received with hilarity either by the B.M.A. or by quite a number of opticians, and I think I know the reasons. First, it deals with a number of controversial issues which were the subject of unanimous recommendations by the Crook Committee, and it deviates to a certain extent from those recommendations and deals with them in a different way.
Secondly, the B.M.A. wrote in April of this year to the Minister of Health asking what he proposed to do about this legislation and whether the Association could have further consultations on the matter. A reply was received from the Ministry to the effect that the Government—exactly as has been said by the hon. Member for Manchester, Exchange (Mr. W. Griffiths)—in due course, and when Parliamentary time afforded the ability to do so, intended to introduce a Measure, and indicating that the Minister would be prepared to have

further consultations with the B.M.A. on the subject.
Suddenly they were presented with this Bill, which was introduced by my hon. Friend the Member for Wembley, South (Mr. Russell), with eight days' notice. There was then all the usual business of emergency midnight meetings and special committees to consider this and that. I am bound to say that the B.M.A. is easily ruffled; but it ought not to be ruffled unnecessarily; and I think it was ruffled to a considerable extent on this occasion.
It reminds me rather of the old days of Bretton Woods and the American Loan. We were told for weeks on end that a Government Measure would be introduced to deal with the great issues of currency, trade and everything else. There would be plenty of time for consultations. Suddenly, we had the American Loan shot at our heads, with the Bretton Woods Agreement, and we were given four days in which to say "Yes" or "No" to the whole outfit, with disastrous consequences for the country—I am glad that you are not listening to me, Mr. Speaker, because I cannot feel that this is entirely in order.
I contend that this method is not the best way of introducing legislation designed to register opticians and enable those who wish to do so to achieve professional status. I further contend that the way in which the Government are now tending to ignore the recommendations of Royal Commissions and interdepartmental committees is becoming something of a scandal. I should be grossly out of order if I made any reference to the Royal Commission on Betting or to the Report of the Wolfenden Committee, much as I would like to dilate at considerable length on both those topics. The fact remains that committee after committee is set up by the Government and public-spirited men of great distinction spend a great deal of time and trouble working on them. They produce almost unanimous reports, and nobody pays the faintest attention to them. This has been going on ever since the war, and if it goes on for very much longer we just shall not get eminent men outside politics to serve on committees. They will think, with considerable justification, that it is a waste of time.
My hon. Friend the Member for Wembley, South, has satisfied me to a very great extent about the amendments which he mentioned in his opening speech, and which he said he would be prepared to accept or to consider seriously. The supplementary ophthalmic service is now to continue indefinitely, and it seems more important than ever that the safeguards recommended by the Crook Committee should be implemented. I was going to ask, before my hon. Friend made his speech, that the Clause establishing the registers should be subject to very careful examination in Committee. I was glad to hear from him that the three registers recommended by the Crook Committee are now to be established.
I very much agree with what the hon. Member for Manchester, Exchange said on this point. I do not think we can give to the General Optical Council power, on its own initiative, to close down one of these registers at any time it thinks fit. I would suggest, as a compromise to be written into the Bill, that the General Optical Council should have the right to make a recommendation to Parliament if at any time it thinks that one of the registers should be closed down, and that Parliament should then take the necessary action. That might be acceptable to everybody concerned. Parliament cannot delegate to the General Optical Council the right to do that off its own bat in view of the very strong recommendation of the Crook Committee that the living of existing practitioners should not be adversely affected.
I further suggest to my hon. Friend that the functions of the ophthalmic optician and the dispensing optician should be more clearly defined than they are in the Bill, in the interests not only of the public but of opticians themselves. And it is clear that the composition of the General Optical Council will need a little revision. Only three ophthalmologists out of 23 members is a pretty small quota and might reasonably be increased.

Mr. W. Griffiths: The hon. Member knows, of course, that the unanimous Report of the Crook Committee, upon which the ophthalmologists served, recommended no more than the number that is in the Bill. The total has been

increased by the addition of more lay members.

Sir R. Boothby: I know, but it makes a larger total. It makes the three look a little smaller than they did when the whole Council was smaller and another one might well be added.
I am only throwing out what, I hope, are one or two constructive suggestions. I have one more to make—that Clause 4 (2, a) of the Bill is so drawn at the moment as practically to prevent 800 medically-qualified ophthalmologists testing sight in medical eye centres situated on the premises of dispensing opticians carrying out the greater part of their practice. That might be amended in Committee to include ophthalmic medical practitioners as well as registered ophthalmic opticians. All these phrases are rather complicated.

Mr. Russell: I hope to deal with that point.

Sir R. Boothby: I am glad of that. With these rather mild protests as to the method and timing of the Bill, I am not opposing it. I certainly think it should go through, especially as the B.M.A. is in favour of the registration of opticians and has never had any wish to prevent their achieving professional status. On the contrary, it desires that they should do so. But the creation of a new profession—it almost amounts to that—with a Council, with disciplinary machinery and power to make recommendations affecting an important part of the Health Service is a very important matter which should be taken seriously. It is my belief that the introduction of this Bill at rather short notice by a private Member should not be thought to have established a precedent for making major changes in the Health Service without adequate notice and full consultation with the B.M.A.

3.7 p.m.

Mr. Frank Beswick: I wish, first, to support the criticism made by the hon. Member for Aberdeenshire, East (Sir R. Boothby) about the treatment of Reports from Royal Commissions, and Government-appointed Commissions of one kind or another. The hon. Member mentioned one or two Commissions which have seen their Reports pigeon-holed. He might well have made reference to the Gowers Report. It seems a little odd that this Government should have allowed this


Bill to be taken over by a private Member when, next week, we are to have a Private Member's Bill taken over by the Government, the Maintenance Orders Bill.
We have been dabbling about with all kinds of little odds and ends and have not time to debate foreign affairs. In the middle of all this confusion the Government put this Bill—on which they have been working in the Departments, I understand, for some years—into the capable hands of the hon. Member for Wembley, South (Mr. Russell). I should like to acid my word of congratulation to the hon. Member for having the courage to take up this very complicated Measure. Having had all the literature that has been sent to us this week, and having seen the conflicting and confused counsels that have been offered to us, I could well have understood the hon. Member if he had seized upon something a little less difficult to bring before the House with the opportunity he has. However, he has chosen this Bill and I congratulate him upon it.
I also want to say that I understand, appreciate and admire the spirit in which my hon. Friend the Member for the Manchester Exchange (Mr. W. Griffiths) has supported this Bill. He emphasised what I wish to emphasise, that our guiding principle in these matters should be what is in the best interest of the public. He might well have taken a much more narrow professional point of view, but he chose to support it on the grounds of public interest.
I believe that most hon. Members know that the Co-operative movement provides an excellent optical service to its members. The movement's attitude has always been that the highest professional standards should be applied to this service, and that there should be a registration of the professional people engaged in it but that there should not be any unnecessary restriction of the scope of the service to members of the general public on purely professional grounds.
The Bill, as I understand it, seems to be a nice balance of interests. It endeavours to protect the public, and it will especially protect the public if we make the Amendment dealing with the provision of spectacles by completely unqualified persons. If that can be made illegal, and if it is possible to define

the articles for which we are legislating, that will no doubt be a considerable improvement to the Bill.
As I have said, I think that the Bill tries to protect the public and to improve the professional standards, but it has not adopted a very narrow vested interest, as at one time seemed possible. I was especially pleased to notice the provisions of Clause 4.
I would add only one further word on the subject. I hope that among all the commitments which the hon. Member has made to these various bodies he will find none conflicting with another. It is difficult to say, before reading his speech tomorrow, exactly the purport of some of the commitments which he has accepted. Nevertheless, I sympathise with him and I am sure that he has been endeavouring to meet reasonable requests from all these professional bodies. I, too, believe that we ought to give the Bill a Second Reading and attempt to deal with the detail in Committee.

3.12 p.m.

Mr. Richard Sharples: I intervene very briefly to congratulate my hon. Friend the Member for Wembley, South (Mr. Russell) on having had the courage to introduce a very complicated and technical Bill. In considering a Bill of this kind we are fortunate to have available the professional experience of the hon. Member for Manchester, Exchange (Mr. W. Griffiths), because to we laymen these matters are very complicated.
My hon. Friend has answered most of the questions which I have had put to me in a fairly voluminous correspondence from my constituents and this has the effect of making my speech considerably shorter than would otherwise have been the case. The main omission from the Bill as originally drafted is the failure to carry out recommendation No. 18 on page 3 of the Crook Report, which specifically recommended that
no unregistered person should be allowed to practise ophthalmic or dispensing optics.
If that part of the Bill can be strengthened on the lines which my hon. Friend has suggested, it will go a long way to meet the point of view of those who object to it.
I think that in his undertakings to move Amendments in Committee my hon. Friend will be able to satisfy the points


of view of most of the others whose objections have been brought to my notice. It is a little unfortunate that the Bill has had to be brought forward without perhaps having the unanimous approval of the profession, but I am certain that that can be put right in Committee. I support the Bill and I very much hope that we shall give it a Second Reading.

3.15 p.m.

The Parliamentary Secretary to the Ministry of Health (Mr. Richard Thompson): It may be for the convenience of the House, and is certainly with no desire to curtail debate on this important matter, if I intervene quite briefly now to indicate the attitude of Her Majesty's Government towards this Bill.
We are all indebted to my hon. Friend the Member for Wembley, South (Mr. Russell) for the able manner in which he introduced this Measure, and to the hon. Member for Manchester, Exchange (Mr. W. Griffiths) for his equally able support. It is fortunate that my hon. Friend used his good fortune in the Ballot in this way, because there is no doubt that for many years now there has been widespread public acceptance of the fact that statutory registration of opticians was desirable.
As one or two points have been made about hurry and lack of consultation before the Bill was brought forward, perhaps I could say a word or two about the history of the matter. As hon. Members will recall, the Government set up, in 1949, what has been called the Crook Committee:
To advise, on the assumption that it would be to the public interest that provision should be made by legislation for the registration of opticians, how registration could best be carried out and what qualifications should he required as a condition of registration.
Ophthalmic and dispensing opticians, and the medical profession were represented on that Committee, which reported unanimously in 1952. In 1953, the Ministry of Health issued a tentative memorandum on points for inclusion in legislation, and had detailed discussions with the organisations representing opticians, with the Faculty of Ophthalmologists, and with the Ophthalmic Group Committee of the British Medical Association. Those discussions resulted in a second memorandum, on which

there was a further round of consultations and correspondence with many other bodies, and with the Joint Committee of the British Medical Association and the Faculty of Ophthalmologists.
While it was not possible to meet all the points that were raised, none of them was pursued by any of the bodies concerned between 1954 and the present year, which, I think, indicates how wide a measure of acceptance the proposals in the memorandum enjoyed at that time. I do not think that it is to be expected that a Bill of this kind, when there is a certain amount of difference of emphasis and opinion among those who are broadly in favour of it, will be absolutely acceptable to all interests at the Second Reading stage, but I agree with my hon. Friend the Member for Wembley, South, that most, if not all, of the points of difference that have come up are quite capable of being resolved during the Committee stage.
The Bill, in fact, follows very closely on the memorandum to which I have referred, and on the majority of the recommendations of the Crook Report. Indeed, one might say that it differs only in two major respects from those recommendations. The first is on the question of making provision for the closing of the register, on which the hon. Member for Manchester. Exchange had some pertinent comments to make, and the second is on the other matter which hon. Members have raised, the prohibition of the testing of sight and the sale of glasses by unqualified persons.
There is, however, another matter in the Bill, to which my hon. Friend the Member for Aberdeenshire, East (Sir R. Boothby) referred and about which I think I should say something. The impression has got about that the effect of Clause 4 (2, a) would be to take away from doctors the power of testing sight. I am quite certain that that is a misconception and I should like to clear it up as definitely and as conclusively as I can. The object of the Clause is to prevent the testing of sight being carried on by an unqualified person in the course of the business of the body corporate—that is to say, a firm of opticians.
Although it has been alleged that this would interfere with the present common practice whereby an ophthalmic medical practitioner tests sight on the premises of


a firm of dispensing opticians I do not know whether it could possibly be held that this sight testing is carried out in the course of the optician's business. But however that may be, nothing could be further from the intention of the Clause. There is no intention whatsoever to interfere in any way with the right of an ophthalmic medical practitioner to test sight and prescribe glasses on the premises of a dispensing optician or elsewhere. If it seems appropriate that a clarifying Amendment putting the issue beyond a peradventure should be made in Committee, it would certainly have the wholehearted support of the Government and. I am sure, of everyone else in the House.
As I have said, the many points of detail in this Bill are, I am sure, capable of being resolved in Committee without too much difficulty, and I ought to say that subject to such improvements as may be agreed in Committee, the Government welcome the principle of this Bill which is one for which there has been widespread public demand and need for a considerable time. We consider that it is a useful Measure which would put on a properly controlled and supervised basis the activities performed by about 8,000 ophthalmic opticians and about 900 dispensing opticians who operate in the United Kingdom and in Northern Ireland.
Therefore, for my part I hope that when we have had some further discussion on this subject—and I do not doubt that there are many other points which hon. Members will wish to raise—the House will see fit to give a Second Reading to a Measure which, I must agree, is long overdue.

3.23 p.m.

Sir Eric Errington: This matter is one of considerable importance to the public generally. I realise that it is no fault of my hon. Friend the Member for Wembley, South (Mr. Russell) that this Bill, with its 28 Clauses and a Schedule, comes before the House with such a limited amount of time for its consideration. It is in those circumstances that it has to be scrutinised carefully.
My feeling about the Bill is that it is a genuine attempt to deal with this problem which has lasted for a considerable time and which, indeed, has lasted some

five years since the Crook Committee reported.
I have some anxiety about the terms that are used and the definition of the various functions. Until a week or so ago I did not realise the distinction, technical or otherwise, between the ophthalmic optician and what is called the dispensing optician. Now there is a suggestion of a third type who will be able to combine, at any rate to some extent, the functions of both. In those circumstances, I am anxious about Clause 2 of the Bill, which provides:
The General Optical Council shall establish and maintain—(a) a register of ophthalmic opticians, that is to say, persons qualified both to test sight and to fit and supply optical appliances; and (b) a register of dispensing opticians ….
Then there is a provision, which, I understand, the sponsor of the Bill proposes to amend to the extent of providing for a register of ophthalmic opticians engaged only, or proposing to engage only, in the testing of sight.
I have not yet been able to ascertain why the definition has not been more in line with the suggestions of the Crook Committee. The quotation from the Crook Report which I wish to make is this:
We feel sure that ophthalmic opticians themselves will agree with us that it would he unfortunate if the public were mistakenly to infer that they possess any diagnostic training or ability which properly pertain only to medical men. Their registration would not imply an ability to diagnose ocular or other diseases.
Following that general view of the situation, the Committee defined the categories in the following way:
An ophthalmic optician is concerned with the investigation of the functions of vision, with a view to the correction or relief of visual defects due to anatomical or physiological variations, without recourse to medicine or surgery, and with the prescribing, fitting and servicing of optical appliances for these purposes. A dispensing optician is concerned with the making up of optical prescriptions and the fitting and servicing of optical appliances.
It might be said that this is a Committee point, but I venture to suggest that it is something more than that, in that what the House is being asked to do—it may be a proper thing to do, and I do not argue that now—is to leave to the proposed General Optical Council the definition of the three types of optician.


I suggest that, when the matter is considered in Committee, as I am sure it will be, very careful attention should be paid to this matter, which may at some time be of great importance to people generally who will probably know very little about the definitions and details with which we are now dealing. It should be made plain in the Statute exactly what we are providing for in these categories and not be left in this rather general form.

Mr. Russell: I will tell my hon. Friend now that I shall be glad to consider that point in Committee.

Sir E. Errington: That is of considerable importance.
The other provision that I wish to refer to shortly is that contained in Clause 22 (1, b), which gives the General Optical Council the power to make rules
prohibiting or regulating … the use by registered opticians and enrolled bodies corporate for the purposes of their practice or business, of names other than those under which they are registered or enrolled.
I hope that no difficulty will arise in respect of medical eye centres. I understand that a medical eye centre is normally a place used by the ophthalmologist, together with the dispensing optician, and it is a convenient place provided by the National Ophthalmic Treatment Board. It is always known as a medical eye centre, and if it is necessary to ensure that a technically-qualified optician is working there, I see no reason why the name of that qualified person should not be there as well as the name "Medical eye centre".
There are other matters which will obviously arise in Committee. The Bill has suffered from a few technical difficulties at its birth but I hope that, as a result of its going to Committee, it can make a very useful contribution to this important subject.

3.32 p.m.

Sir Hugh Linstead: I should like to add my congratulations to my hon. Friend the Member for Wembley, South (Mr. Russell) and the hon. Member for Manchester, Exchange (Mr. W. Griffiths) for having brought in the Bill. I should also like to express sympathy with something said by the hon. Member for Uxbridge (Mr. Beswick) earlier about the fate of recommendations of Royal

Commissions and Departmental Committees, but we must remember that the job of a body such as the Crook Committee is somewhat different from the duty of a Government when they receive the Report of that Committee. If a Committee or a Royal Commission were to do its work thinking always of the political implications of its recommendations, we should very often get much less satisfactory reports than we do at present. I do not think that we need necessarily complain if a Government take a recommendation of a Committee, look at it through political eyes, and come to a different conclusion, for purely political reasons.
The Bill is not merely the result of a few years of discussion and investigation it is the completion of a very long process, going back to the National Health Insurance Act, 1911, or possibly even farther than that. Those forty years have seen the gradual growth of the optical profession, and if we give the Bill a Second Reading we shall be crowning the result of many years of hard labour and negotiation by the leaders of that profession and the Ministry of Health.
I appreciate the complaints of my hon. Friend the Member for East Aberdeenshire (Sir R. Boothby) about the inadequate time for discussion with the British Medical Association. I think that he would be the first to recognise that nobody dealing with a Bill of this kind would lightheartedly create difficulties with the Association. On the other hand, Private Members' Bill procedure is what it is, and we have to take it with the tide on the one day in the year when it is possible to do something with that procedure. Instead of complaining about the inadequacy of consultation, we ought to be content with congratulating the sponsors of the Bill on having seized the opportunity in spite of the difficulties.
The Bill raises one or two interesting general questions connected with the development of professions. Usually professions begin by being unorganised; then they organise themselves and, at a certain stage, come to the State, which takes them over and gives them statutory recognition.
One recognises the process. It is one, first of all, of education and examinations. Then it is a question of registration and protection of title. Finally, we reach


the very difficult question of how far we should limit the practice. All those stages are represented in the Bill. One of the most important things always done by Parliament when it has to deal with the recognition of practitioners is to make certain that existing practitioners are not prejudiced by the crystallisation of registration, practice and examination. We are right to be very careful and tender over the rights of all existing practitioners in the Bill. With the Bill as it is now, plus the assurances my hon. Friend the Member for Wembley, South was able to give to the House, nobody engaged in the optical profession has anything to fear from financial or other loss resulting from the Bill. Indeed, all of them have something to gain.
The Parliamentary Secretary made it quite clear that the fears of doctors in relation to Clause 4 (2, a) are groundless or, if they are found to be well based, can be dealt with in Committee. It will be particularly important to see that we so arrange the closing down of the register that we do not prejudice anybody by the procedure we adopt. I would not have thought it was entirely necessary to come back to Parliament and have a completely new Bill or new legislation if we want to close the register. To shut the door and prevent new entrants coming in but not attempt to put any existing practitioners out of business might be done by an arrangement whereby the General Optical Council makes a proposal for an Order in Council which becomes effective on an affirmative Resolution of the House. There should be something of that kind rather than wait for the always chancy business of being able to get legislation. That is a typical matter we can discuss in Committee. I would have thought that we should have no difficulty in obtaining an Amendment which would satisfy those concerned.
Where I find greater difficulty is in meeting a point mentioned by one of my hon. Friends and the Member for Uxbridge, which is how far we are justified in preventing in the first case and, secondly, how far we are able to prevent unqualified practice. Even the medical profession has not protection of practice. Anybody by and large can practise as a doctor. He is not prevented by law. The dentists, of course, have almost complete prohibition of dental practice except by registered men. In this sphere we are

wise not to have attempted in the Bill, either by defining too closely the different classes or by a direct prohibition of practice, to make, for example, the sale of spectacles by unqualified people illegal. Let us examine it by all means in Committee. There is obvious substance in it. We shall probably come out of the same door through which we went and find it very difficult to amend the Bill to define what can or cannot he done by the unqualified man.
Having said that, I once again warmly congratulate the hon. Member for Wembley, South and the hon. Member for Manchester, Exchange, the mover and seconder, respectively, of the Bill. I commend it to the House, and I hope that we shall give it the examination it deserves in Committee.

3.40 p.m.

Mr. H. A. Marquand: I did not attempt to catch your eye, Mr. Deputy-Speaker, earlier until I felt well assured that no great degree of opposition was manifested in the House to the Bill. I hope that if, for a few moments. I explain why I support the Bill I shall not be endangering its prospects of reaching the Statute Book.

Mr. Anthony Marlowe: The right hon. Gentleman may be right in saying that no opposition has been expressed so far in the debate, but I should like to make it clear to the right hon. Gentleman that I personally am opposed to this Bill.

Mr. Marquand: That is a very interesting observation. Then, perhaps, I had better confine my remarks to the shortest possible time, in explaining to the lion and learned Gentleman and to the House why I personally think that a Bill of this nature is desirable and should be given a Second Reading.
When I was Minister of Health I was approached by the optical profession who asked me: "How do we and the supplementary ophthalmic service stand now under the provisions of the National Health Service Act? What does the future hold for us? What are the Government's intentions in view of several years' experience of the Health Service?" I told them at that time, looking at the whole situation, considering the past experience of the working of the ophthalmic services within the Health Service, reviewing


future prospects, and the ability to supply the necessary ophthalmic experience and optical experience and the treatment of eyesight defects, that there was no likelihood for years to come of our being able to dispense with the supplementary ophthalmic service.
I do not think that that situation has changed very much. I certainly believe that in these circumstances it is very wise to encourage the optical profession and to give it the opportunity to develop its own educational service and to build up its own professional standards. If we do this it will be a protection for the public. If we enable the optical profession to improve its standards, its training, its conditions for entry into the profession under public supervision of an optical council controlled by the Privy Council, we shall then be safeguarding the rights of the citizen.
The danger, as everyone knows, is that unskilled, imperfectly qualified persons may fail to diagnose deep-seated organic defects in the eye and may fail to report those, as they should do, to properly qualified ophthalmic surgeons. The sort of training which is provided for under the Bill, it seems to me, would give a safeguard to the public, an assurance that persons insufficiently qualified to be able to observe those warning signs and report them to the proper quarters would be eliminated in practice. They would have a better assurance than they have had in the past when they resort, as many of us are obliged to do, to a service which is not fully medically qualified that they will get a service on which they can rely for being warned in time of any occasions when they should go to a medical practitioner.
That, in brief, is the reason why I put my name to this Bill. I am glad it has been put forward. I congratulate the hon. Member for Wembley, South (Mr. Russell) who moved the Second Reading, and the hon. Member for Manchester, Exchange (Mr. W. Griffiths), who supported him. I hope that they will succeed with the Bill. I think they have met very reasonably indeed the various criticisms which have been put forward. They are all matters which can be dealt with in Committee. The most admirable assurances have been given by both the hon. Gentlemen that all those matters can be considered in Committee.
It is unfortunate. I think, that the Government did not bring forward their own Bill, but those who have listened to the speech of the Parliamentary Secretary will realise that if they had it would not have been very different from this one. Hon. Members who support the Government, or say they do, may bear that in mind when they are considering the Bill, which. I hope, will be given its Second Reading today.

3.44 p.m.

Mr. John Hynd: I want to say only a few words in support of the Bill and to ask a couple of questions which it may be well to raise now so that they may be considered, if necessary, in advance of the Committee stage. Although it is true to say, as the hon. Gentleman the Member for Putney (Sir H. Linstead) did, that there is no absolute bar to anyone carrying on medical practice without the necessary medical qualifications, there is in existence the disciplinary practice of the British Medical Association which provides a very strong protection for the public against the practice of any doctor who is qualified and who for other reasons has been found by his colleagues unfit to practise officially. In most cases when a doctor is struck off the Medical Register he has hopes that some day his name will be restored, and that is a deterrent against his carrying on practice whilst he is not registered.

Sir H. Linstead: Surely there are large groups of people who are practising medicine who have not been on the Medical Register at all. People like osteopaths are perfectly free to practise.

Mr. Hynd: That is what I am saying. There is no bar in those cases, but people who have been registered and have qualifications and, therefore, can represent themselves as qualified may be deterred from carrying on practice whilst they are struck off the register for some other reasons, because they can hope that their names may be restored. Osteopaths are recognised by the public as being in a different category, though I am not saying whether they are better or worse.
I am not going fully into the Schedule of the Bill, but I see that it is provided


that the General Optical Council shall consist of
(a) four persons nominated by the Privy Council
but these persons
shall not be a registered optician, a registered medical practitioner, or a director of a body corporate carrying on business as opticians.
I presume that the intention is that generally they shall be lay members of the Council, apart from one mentioned in paragraph 2 of the Schedule, who can be nominated by the Privy Council.
I hope, therefore, that it is the intention that there shall be three lay members, for the reason that the constitution of the Disciplinary Committee and the Investigating Committee, referred to in Clause 9, raises a point which it is worth bearing in mind from the experience of the General Medical Council. It is to be the rule, under Clause 10 (3), to
secure that a person, other than the Chairman of the General Optical Council, who has acted in relation to any disciplinary case as a member of the Investigating Committee does not act in relation to that case as a member of the Disciplinary Committee.
The General Medical Council originally had two lay members and since its rule was that no member who had served on its Investigating Committee should deal with a case dealt with by its Disciplinary Committee there arose a very difficult quandary.
Either the two lay members had to be stabilised on their respective committees and could not change over and get wider experience or, alternatively, there was an overlap when they changed places so that the one who came from the Investigating Committee could not deal with something which came before the Disciplinary Committee, because it had been dealt with by the Investigating Committee during the previous twelve months when he was a member of that committee.
I hope, therefore, that there will be three lay members on the General Optical Council and not two, so that this difficulty about disciplinary cases can be overcome. This is very important. It is clear that in a body of this kind, where the future careers of opticians may be at stake, there should be someone who is not directly interested in the profession sitting there with a watching brief, guaranteeing that the point of view of the public and that of the consumer are

being taken into account, and ensuring that there is no closed shop or Star Chamber operating within the profession.
It will be accepted that the experience of the General Medical Council has shown this to be vitally important in the interests of the profession and of the Council itself. I hope that this point about laymen on the General Optical Council will be borne in mind when we discuss the Bill in Committee.

3.50 p.m.

Mr. Anthony Marlowe: I am sorry to strike a discordant note in this otherwise harmonious discussion, but my opposition to the Bill arises on the grounds that, whatever laudable objects it may have. I do not think we have gone about the business in the right way.
It may well be true that there are some parts of this Bill which many of us would support and endorse. At the same time, there are other parts of it which have not found favour with many people who have a very close knowledge of the profession. I should like to make clear, even at this early stage, that I shall not use any tactical measures to make it impossible for my hon. Friend the Member for Wembley, South (Mr. Russell) to bring the proceedings to a conclusion at the appropriate time.
This is clearly a very important Measure. I rather agreed with the right hon. Gentleman the Member for Middlesbrough, East (Mr. Marquand), who said that if a Measure of this kind has to be introduced it should be a Government Bill. I think that is perfectly right. Had it been a Government Bill, there would have been far greater opportunity for considering all the arguments which have been presented to us from interested quarters. I think that all of us over the last week or so have received a great deal of literature, most of which we found very confusing because this is a field in which we have not any specialised knowledge and we do not share the advantages which the hon. Gentleman the Member for Manchester, Exchange (Mr. W. Griffiths) has. I personally should have liked to have studied this important Measure a great deal more before coming to a conclusion upon it.
Had it been a Government Bill, clearly it would have been better prepared. I say this without any reflection on my hon. Friend the Member for Wembley,


South. I know only too well, as one who has himself introduced a Private Member's Bill, the difficulties under which a private Member labours. I apologise to my hon. Friend the Member for Wembley, South for not being present when he introduced the Bill, but one has a clear impression after listening to this debate for a little while that what my hon. Friend has been driven to do is to say, "It is perfectly true that this Bill does not in its present form represent what we want, but we will make a series of changes in Committee which will make it into an entirely new Bill."
I do not believe that we in this House ought to deal with important Measures of this kind in that way. It may be all very well in a Private Member's Bill, when dealing with a comparatively minor topic, to say that we shall be able to amend it on the way and get it right in the end. Here we are dealing with a question of professional standards of very considerable importance, and I do not think that it is satisfactory for Parliament to say, "We have got this Bill. We do not really know what it is going to do, but we will hammer something out as we go along and hope that something better will emerge at the end." That point would have been met had the view expressed by the right hon. Gentleman opposite been accepted that it should be a Government Bill, when, of course, it would have been given suitable time and opportunity for examination.
My hon. Friend the Member for East Aberdeenshire (Sir R. Boothby) and the hon. Gentleman the Member for Uxbridge (Mr. Beswick) drew attention to the extent to which public committees and commissions are now ignored. I rather agree with them on that point. The surprising thing is that both of them accepted this Bill in spite of the fact that it is of that very nature, that it ignores many of the recommendations of the Crook Committee. Although they take the view that committees and commissions should not be ignored in that way, both my hon. Friend and the hon. Gentleman opposite, while accepting that that would happen in this case, nevertheless support the Bill.
What I am concerned about is that it appears from the representations that have been made to me that this Bill, however it is amended, may have some effect on those engaging in this profession or various branches of it at the moment. I think that Parliament ought to be slow to interfere with the rights of people who are carrying on a perfectly legitimate business or profession without our being fully aware of what the consequences will be. One particular aspect of the matter has been set out in the Memorandum of the Ophthalmic Group Committee of the British Medical Association, which has been sent to all of us. It states in paragraph 9:
The Crook Committee recognised that opticians who today do both sight-testing and dispensing could not reasonably have this right taken away at once, or at any time, without warning.
It also laid down the conditions which must be satisfied so that the rights and interests of all sections were safeguarded and no hardship was caused.
The appropriate committee of the British Medical Association has examined this matter. It probably has a great deal more knowledge about it than any of us. It came to the conclusion that the Bill should be opposed, or at any rate should not be supported. I pay great respect to the expressions of opinion of people who have considered these matters and who know a great deal more than I do about them. Had the Bill been introduced in a different way we might have been in a better position to judge whether the representations that have been made to us for and against were justified or not.
As at present advised, I cannot help feeling that the House is not in full possession of the arguments either way and that we ought to reject the Bill in order to give the Government an opportunity to introduce a properly considered Measure upon which all of us would be better advised.

Question put and agreed to.

Bill accordingly read a Second time.

Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).

Orders of the Day — NATIONAL ASSISTANCE ACT, 1948 (AMENDMENT) BILL

Order for Second Reading read.

3.58 p.m.

Miss Joan Vickers: I beg to move, That the Bill be now read a Second time.
I move this Motion, Mr. Speaker, in the absence of the hon. Member for Accrington (Mr. H. Hynd), who, unfortunately, is unable to be present. The Bill is in almost all respects exactly the same as the Bill which received Second Reading last Session and went through Committee in less than 20 minutes. Unfortunately, it did not reach the Floor of the House again in that Session.
The only difference between the Bill and the Bill of last Session is the words:
and other services
in the Long Title. These words are inserted to cover recreational and other services, so as to enable them to be provided for old people.
For those reasons, I suggest that the Bill should be given a Second Reading so that these added words may be further debated by the House. The hon. Member for Accrington informs me that the three words to which I have referred are acceptable to the mover of the original Bill. I should, therefore, be very grateful if the Bill could receive an unopposed Second Reading.

3.58 p.m.

Sir Eric Errington: From what has been said by my hon. Friend the Member for Plymouth, Devonport (Miss Vickers). I cannot understand exactly what the position is. My hon. Friend spoke of chiropody services and I cannot follow whether they come within the terms of the Bill, or whether it is something which is proposed to be added in future. As I see the position, local authorities, if this Bill becomes an Act—

It being Four o'clock, the debate stood adjourned.

Debate to be resumed upon Friday next.

Orders of the Day — ROAD TRANSPORT LIGHTING (AMENDMENT) BILL

Read a Second time.

Bill committed to a Standing Committee, pursuant to Standing Order No. 38 (Committal of Bills).

Orders of the Day — EX-PRISONER OF WAR JAPAN (PENSION)

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Brooman-White.]

4.0 p.m.

Mr. W. F. Deedes: The outline of this case which I wish to bring before the House is simple to state. Mr. C. W. Harmar, of Goudhurst, is an ex-Gunner, and between February, 1942, and October, 1945, he was a prisoner in the Far East in the hands of the Japanese. Of this ordeal it is only necessary for me to say that he emerged weighing 4 stone, 9 pounds. He was X-rayed in October, 1945, and no abnormality was discovered. In January, 1947, he was discharged from the Service and re-enlisted for four years. At the end of that time, in December, 1950, he appeared before a medical board which passed him clear, so that really he had two examinations, one immediately after his return and the second five years after his return. I want to make that quite clear, because it stresses the nature of this problem.
In March, 1957, he contracted pneumonia and was treated for it. He is now at this moment suffering from pulmonary tuberculosis and receiving hospital treatment in Sussex. He may be out this month, but he has been told that he will not be able to work for twelve months. So he has had pneumonia nine years after leaving the prisoner-of-war camp and now, after 12 years, he has pulmonary tuberculosis. In those circumstances, the Ministry of Pensions and National Insurance has felt that it must refuse the request made on his behalf by many people for a war disablement pension. This was done after the most scrupulous inquiry—I should like to acknowledge that—and also after considerable correspondence, as my hon. Friend so informed me last October.
This is not a case about which anyone ought to use immoderate language. The refusal of the Ministry cannot be characterised as outrageous. But, unfortunately, it is not as simple as that. It involves the very difficult problem of assessing Mr. Harmar's disabilities in the light of his experience as a prisoner of war in the hands of the Japanese. My hon. Friend will have had far greater experience in these matters than I, but I fancy he will admit how difficult it is to assess fairly the consequences of that experience.
Unhappily, this is by no means the first case of its kind. I know of a case where tuberculosis occurred four years after the release of a man from a Japanese prisoner-of-war camp. In that case it was attributed to hardship and a pension awarded. There have been other cases which my hon. Friend will know about where the nerves of people have been permanently affected, and so on, and I think he will accept that scars can be left on a man as a result of these experiences which he will bear all his life. I am not blind to the difficulties of the Ministry. Where should the Ministry draw the line? Outside the category of prisoners of war we know that there are thousands of cases—many hon. Members have had to deal with such cases in their correspondence—and I accept that a line must be drawn after which it may be presumed that disability suffered by a man cannot be directly attributed to his service.
The Japanese cases present special difficulties. Because of the effect on the individual they vary in every case. I do not pretend as a layman to talk with any knowledge about tubercular causes or development. I think it is accepted that the rate at which it may make itself manifest is variable. In the case of Mr. Harmar, medical opinion is divided. Mr. Harmar's advisers and those looking after him sincerely believe this is attributable to his experience. The Minister's advisers, no less sincerely, believe otherwise.
I think I should quote from a letter I have from Mr. Harmar's chest physician, in which he states his grounds as follows:
When he was originally X-rayed, we thought there was evidence of old disease in

his lungs, and later we thought that there was some activity so he was admitted to a Sanatorium. I advised him originally to apply for a pension and was very surprised when he did not get it. In view of his past history of being a prisoner of war in the Far East, I think he undoubtedly contracted the disease whilst a prisoner of war and it has only just recently broken down again. Under these circumstances, I think he should be entitled to a disability pension.
It will be seen that there is a clear, sincere but, nonetheless, sharp difference of opinion between reliable medical evidence on the two sides. In those circumstances, a layman must speak with strict moderation. A terribly narrow line clearly divides knowledge and truth in cases of this kind. I think I am entitled to ask my hon. Friend what sort of term is set to the occurrence of such maladies in the case of the Japanese prisoner of war and whether this particular case is so far outside that term. I think that is doubtful, because I know how immensely careful the Ministry my hon. Friend represents is in such cases. Obviously this is not the only case of this sort. There must be others in which there is an honest division between the doctors.
Is there any way in which one can resolve such a situation? Where, as here, there is a scintilla of doubt, it seems to me that unless there are very convincing reasons otherwise, that scintilla of doubt should lead to the individual—in this case Mr. Harmar—getting the benefit of the doubt. That is all I ask my hon. Friend on behalf of Mr. Harmar.

4.7 p.m.

The Joint Parliamentary Secretary to the Ministry of Pensions and National Insurance (Mr. Richard Wood): I am glad my hon. Friend the Member for Ashford (Mr. Deedes) has raised this case, because it is one to which I have given a great deal of thought. I was glad of the firm yet moderate way in which he discussed it.
All cases of ex-Japanese prisoners of war are cases we are bound to look at—all of us—with a great deal of sympathy. It is as, my hon. Friend said, very difficult in these cases where a man has been a prisoner of war for any length of time, to decide what connection there is between his experiences in the prisoner of war camp and his subsequent illness. I do not think my hon. Friend needs


reminding that like him I am a layman. I shall, therefore, take his advice to try to look at this problem with, in his own words, strict moderation.
My hon. Friend has talked about the history of this case and has rightly said that when Mr. Harmar was X-rayed in 1945, after his return from the prisoner of war camp, his chest was found to be normal. He had several medical boards at the end of that year which pronounced that his general condition was good and his nutrition was good. I have some difficulty in understanding the figures which my hon. Friend gave about Mr. Harmar's weight. I looked carefully at the report of the medical board and found that his weight was very considerably more than the 4 stone 9 lb. my hon. Friend quoted.
Mr. Harmar served until the beginning of 1951, and I think it significant that in those five years the only illness from which he suffered was a cold, which lasted only four days. At the end of his military service, in December, 1950, he had another medical board which found his physique fair and, again, found nothing abnormal at all in his lungs. From his discharge from the Army until fairly recently he was working in various employments, until in 1954 he had his first attack of pneumonia. That was the first of three attacks. He also had an attack of influenza one December.
Apart from the words which my hon. Friend has already quoted from Mr. Harmar's medical adviser. I think it would be fair if I underlined this opinion by another quotation, from, I think, the same source, which reads:
This man has in my opinion not yet fully recovered from the hardships he suffered during his time as a prisoner-of-war. He has had three attacks of pneumonia in three years, more than most people get in a lifetime. Hic resistance to disease, especially respiratory infection, is below that of an average man of his age.
That is from Mr. Harmar's doctor.
After the third attack of pneumonia in 1957 his doctor referred him to a chest clinic and at that time, which I think was in February of this year, it was diagnosed that he had quiescent tuberculosis. In May, 1957, he claimed a pension for pneumonia. In the following month, in June, he was admitted, as indeed are the great

majority of ex-prisoners of war, into Roehampton Hospital for a thorough investigation to see what was the position in relation to any tropical disease. It was discovered that he suffered from some effect of malnutrition.
The medical board this summer advised him to go to a chest clinic, and it was there that X-rays of his chest were not found satisfactory and the tuberculosis to which my hon. Friend has referred was suspected.
The question which my hon. Friend has raised is whether Mr. Harmar's experiences as a prisoner-of-war had the effect of lowering his resistance to infection, thus pre-disposing him first of all to pneumonia, which in its turn made more likely the onset of a tuberculous infection. I hope that I put that correctly. I am bound to admit, having looked very carefully at this case, that I think that this chain of causation is extremely unlikely.
First of all, there is the evidence of his last five years of service in which he suffered only this small cold of short duration. Secondly, there is the evidence of the medical board, first when he left the prisoner-of-war camp and secondly, when he left the Army, that his lungs were clear. Thirdly, there is the fact that he did not have pneumonia until eight or nine years after he left the prisoner-of-war camp. I think that it is reasonable to expect that if his experiences as a prisoner-of-war had had the effect of lowering his resistance to infection, he would have suffered before the eight or nine years had elapsed.
I would, however, make this reservation. Although I am still of the opinion that the connection between malnutrition on the one side and pneumonia and tuberculosis on the other is extremely improbable, there is the fact that he has had these three attacks of pneumonia, which, as his doctor says, are as much as most people get in a lifetime—and I hope more than a great many people get. The second fact is that in this case there is a sincere difference of medical opinion. Where a difference of medical opinion exists, my right hon. Friend is able to refer the matter for a decision to an independent medical expert.
I suggest that such a course would be appropriate in this case. I will give my


hon. Friend an undertaking now to issue directions to this end, so that Mr. Harmar's case can be re-examined and the conflict of opinion—the very genuine and sincere conflict of opinion—between

Mr. Harmar's doctor and the medical advisers in the Ministry of Pensions and National Insurance can be resolved.

Question put and agreed to.

Adjourned accordingly at a quarter past Four o'clock.